Opinion
Case No: 2:16-cv-00132-SPC-CM
07-07-2016
PATRICIA KENNEDY, an individual, Plaintiff, v. KITE KING'S LAKE, LLC; J P R TRUSTING ENTERPRISE, INC.; UTOPIA NAIL AND SPA, INC.; THE RESCH KIDS, LLC; KINGS LAKE HAIR DESIGN, INC.; ASIAN PALACE, INC. Defendants.
ORDER
This matter comes before the Court upon review of Motion for Clerk's Entry of Default (Doc. 50) filed on June 25, 2016. Plaintiff moves, pursuant to Federal Rule of Civil Procedure 55(a), for entry of Clerk's default against Defendants Utopia Nail and Spa, Inc. ("Utopia") and Asian Palace, Inc. ("Asian Palace"). For the reasons that follow, the motion is due to be granted in part and denied in part.
Pursuant to Rule 55(a), Federal Rules of Civil Procedure, "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Similarly, Middle District of Florida Local Rule 1.07(b) provides:
When service of process has been effected but no appearance or response is made within the time and manner provided by Rule 12, Fed. R. Civ.P., the party effecting service shall promptly apply to the Clerk for entry of default pursuant to Rule 55(a), Fed. R. Civ. P.
M.D. Fla. R. 1.07(b). Prior to directing the Clerk to enter a default, the Court must first determine whether Plaintiff properly effected service of process. United States v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357, at *1 (M.D. Fla. June 24, 2009).
Service on a corporation can be made by any manner accepted in the state or "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process[.]" Fed. R. Civ. P. 4(h)(1)(A), (e)(1). Section 48.081, Florida Statutes, provides a hierarchy for service of process upon a corporation. A private corporation may be served by serving process on the president, vice president, or other head of the corporation, and in the absence of any such persons, on other corporate employees, including any officer or director. Fla. Stat. § 48.081(1)(a)-(d). As an alternative, process may be served on a registered agent of the corporation, or an employee of the registered agent. Id. § 48.081(3)(a). If service cannot be made on the registered agent, service of process is permitted on any employee at the corporation's principal place of business or any employee of the registered agent. Id.
For Asian Palace, the Return of Service (Doc. 47) states that on March 12, 2016, a process server for Caplan, Caplan, and Caplan delivered a true copy of the Summons in a Civil Action (21 days) and Complaint with Injunctive Relief Demanded upon You Xi Hung, registered agent for Asian Palace at 4850 Davis Blvd, Naples, FL 34104. Doc. 47 at 1. Affidavits by process servers constitute a prima facie showing that defendants have been served. Udoinyion v. The Guardian Security, F. App'x. 731, 735 (11th Cir. 2011) (unsworn and unsigned letters insufficient to call into question prima facie evidence of service consisting of process server's sworn return); Burger King Corp. v. Eupierre, Case No. 12-20197-CIV, 2012 WL 2192438, *2 (S.D. Fla. June 14, 2012). Service of process therefore was properly effected under Rules 4(h)(1)(A), (e)(1), Federal Rule of Civil Procedure, and section 48.081(3)(a), Florida Statutes.
According to www.sunbiz.org, You Xi Hung is the registered agent for Defendant Asian Palace.
For Utopia, the Return of Service (Doc. 48) states that on February 23, 2016, a process server from Caplan, Caplan, and Caplan delivered a true copy of the Summons in a Civil Action (21 days) and Complaint with Injunctive Relief Demanded upon Rose Kurz, an administrative assistant authorized to accept service in the absence of the registered agent at 2626-3 E Tamiami Trail, Naples, FL 34112. Doc. 48 at 1. The Return of Service lists the registered agent as Joseph Candito; however, a search of the Florida Department of State, Division of Corporations' website reveals that the registered agent for Utopia is Jerald Pitkin and its officer is Tuyet Nguyen. Plaintiff does not advance any explanation as to why service was not attempted upon the proper registered agent nor does Rose Kurz appear to be an agent authorized to accept service of process. As there is no indication that service was attempted on the registered agent, the Return of Service is insufficient to establish service of process. See PNC Bank Nat. Ass'n v. Orchid Grp. Investments, L.L.C., No. 2:13-cv-12-FtM-99SPC, 2013 WL 870256 (M.D. Fla. Mar. 8, 2013); Lantana Ins., LTD. v. Tome, No. 610-cv-402-Orl-31DAB, 2010 WL 2869533, at *1 n.1 (M.D. Fla. July 21, 2010); White v. OSP, Inc., No. 2:13-cv-709-FtM-29CM, 2014 WL 2861488, at *1 (M.D. Fla. June 24, 2014).
www.sunbiz.org
The Court notes that according to the website, Utopia was administratively dissolved on September 25, 2009. Service on a dissolved corporation shall be in accordance with Florida Statute section 48.081. See Montgomery Bank, N.A. v. Hoolihan, No. 2:16-cv-173-FTM-38CM, 2016 WL 1704202 (M.D. Fla. Apr. 28, 2016).
Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A), a defendant must serve an answer within 21 days after being served with the summons and complaint. Defendant Asian Palace has failed to do so within the time period; therefore, entry of Clerk's Default pursuant to Federal Rule of Civil Procedure 55(a) and Middle District of Florida Local Rule 1.07(b) is appropriate.
ACCORDINGLY, it is hereby
ORDERED:
Motion for Clerk's Entry of Default (Doc. 50) is GRANTED as to Defendant Asian Palace, Inc. and DENIED without prejudice as to Defendant Utopia Nail and Spam Inc. The Clerk is directed to enter a Clerk's Default against Defendant Asian Palace, Inc.
DONE and ORDERED in Fort Myers, Florida on this 7th day of July, 2016.
/s/_________
CAROL MIRANDO
United States Magistrate Judge Copies:
Counsel of Record