Opinion
Case No. 5:11-cv-211-Oc-32TBS.
September 26, 2011
ORDER
Pending before the Court is Plaintiffs' Motion to Vacate Judgment. (Doc. 10). Defendant filed a response in opposition (Doc. 11), and thus, this matter is ripe for review. On April 18, 2011, Plaintiffs filed this action against Defendant. (Doc. 1). On June 9, 2011, Plaintiffs filed their "Request for Entry of Default" (Doc. 4), which the Court denied because Plaintiffs failed to file sufficient proof of service of process as to Defendant. (Doc. 5). Defendant then filed a motion to dismiss Plaintiffs' Complaint (Doc. 6) and Plaintiffs filed the instant "Motion to Vacate Judgment" in which they ask the court to vacate the denial of the entry of default because they claim they submitted sufficient proof of service. (Doc. 10).
In order to obtain entry of a clerk's default, a plaintiff first must effect service of the clerk-issued summons and the complaint on the defendant. See Berenato v. Tankel, 3:10-cv-979-J-32MCR, 2011 WL 17616, at *1 (M.D. Fla. Jan. 4, 2011); see also Fed.R.Civ.P. 4. Here, a review of the docket reveals that the clerk has issued no summons in this action. Moreover, Plaintiffs attempted to serve Defendant by certified mail which is not a sufficient mode of service for a corporation under federal or Florida law. See id. Finally, even if Defendant was properly served and its motion to dismiss was not timely filed, entry of default against Defendant would be improper at this early stage of the litigation given the court's preference for adjudicating cases on their merits. See Jackson v. Brooks, 3:11-cv-275-J-32JBT, 2011 WL 1982206, *1 (M.D. Fla. May 20, 2011).
Accordingly, Plaintiffs' Motion to Vacate Judgment (Doc. 10) is DENIED. Based on this ruling, Plaintiffs' Motion for Default Judgment (Doc. 15) is DENIED as moot.
DONE and ORDERED in Orlando, Florida.