Opinion
Case No. 2:11-cv-308-FtM-29SPC.
September 28, 2011
ORDER
This matter comes before the Court on Plaintiff's Motion for Entry of Default (Doc. #9) filed on September 26, 2011. Plaintiff Wendy Miller, moves for the entry of clerk's default against Defendant Prime West Management Recovery, LLC, a California Limited Liability Company. The Proof of Service (Doc. #9-1) indicates that Defendant Prime West was served with process on August 15, 2011. 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. To date, Defendants have failed to file or serve any paper in response.
The entry of a default is appropriate "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise." Fed.R.Civ.P. 55(a). Before a clerk's default can be issued against the party the serving party must establish that defaulting party was properly served. Kelly v. Florida, 2007 WL 295419 *2 (11th Cir. Jan. 31, 2007).
Pursuant to Fed R. Civ. P. 4(h), service upon a corporation is effected when:
[u]nless otherwise provided by federal law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name and from which a waiver of service has not been obtained and filed, shall be effected:
(1) in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant . . .
The Florida Rules of Civil Procedure state that "at the time of personal service of process a copy of the initial pleading shall be delivered to the party upon whom service is made." Fla. R. Civ. P. 1.070. A corporation may be served by serving process on the president, vice president, the cashier, treasurer, secretary, general manager, any director, any officer or business agent residing in the state. Fla. Stat. § 48.081(1)(a-d). As an alternative, process may be served on the agent designated by the corporation as its registered agent. Id. § 48.081(3)(a). The conditions imposed by Florida Stat. § 48.081 must be strictly complied with. S.T.R. Industries, Inc. v. Hidalgo Corporation, 832 So. 2d 262, 263 (Fla. 3d DCA 2002); Richardson v. Albury, 505 So. 2d 521, 522-523 (Fla 2d DCA 1987).
In this case, the Proof of Service indicates that Defendant Prime West, which is a LLC located in Corona, California, was served through Gerald Soriano c/o Incorporating Solutions Group, Inc., also in California. (Doc. #9-1). A search of the California Secretary of State records for information about Prime West reveals that Incorporating Solutions Group, Inc. is Defendant's registered agent for service of process. Therefore, the Court finds that this service on Gerald Soriano c/o Incorporating Solutions Group, Inc. as Defendant's registered agent was proper. To date, there has been no responsive pleading with respect to the Complaint from the Defendant. Therefore, the entry of clerk's default against Defendant Wall Systems is appropriate at this time.
Accordingly, it is now
ORDERED:
Plaintiff's Motion for Entry of Default (Doc. #9) is GRANTED. The Clerk of Court is directed to enter clerk's default against Defendant Prime West Management Recovery, LLC.
DONE AND ORDERED at Fort Myers, Florida.