Opinion
6:24-cv-621-CEM-LHP
06-24-2024
SHARON D. STALEY, Plaintiff, v. HEALTH FIRST, INC., Defendant
ORDER
LESLIE HOFFMAN PRICE UNITED STATES MAGISTRATE JUDGE
This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: RENEWED MOTION CLERK'S ENTRY OF
DEFAULT AGAINST DEFENDANT HEALTH FIRST, INC. (Doc. No. 12)
FILED: June 20, 2024
THEREON it is ORDERED that the motion is DENIED without prejudice.
On May 31, 2024, Plaintiff filed a motion for Clerk's default against Defendant Health First, Inc., stating that Defendant was served on April 19, 2024, by service on “Jennifer L. as Concierge Specialist for Health First, Inc.” Doc. Nos. 8, 8-1. Upon consideration, the Court denied that motion without prejudice for failure to comply with Local Rule 3.01(a) and for failure to demonstrate that service was proper under governing law. Doc. No. 9. The Court ordered Plaintiff to file a renewed motion to include a memorandum of legal authority establishing that service was proper. Id. at 2.
Now before the Court is Plaintiff's renewed motion. Doc. No. 12. Plaintiff maintains that service of process was proper under governing law because Plaintiff identified Nicholas Romanello, Esq., as Defendant's registered agent, Mr. Romanello is Assistant Secretary of Defendant's Foundation Board of Trustees, and “[i]t is unrealistic and impractical for a member of the Board of Trustees . . . to personally accept service of every Complaint that is filed against Defendant, accordingly a Concierge Specialist was assigned to accept legal papers for the Defendant.” Id. at 3; see also Doc. No. 12-2. In support, Plaintiff submits a declaration from a process server, Christopher Scudder, who avers that he has “served multiple papers to multiple hospitals, and they sometimes assign a Concierge Specialist to accept papers for the legal department and or the records department,” so “service to the Concierge Specialist in this case, was not a unique or remarkable event.” Doc. No. 12-3. Mr. Scudder was not the process server who effected service in this case. See Doc. No. 12-2.
Upon review, Plaintiff's renewed motion will be denied. Again, Plaintiff fails to demonstrate, by citation to legal authority, that service of process on a concierge specialist was sufficient to properly effect service under governing law. See Doc. No. 12. Plaintiff points to Fla. Stat. § 607.0501, which merely sets forth the requirement that a corporation maintain a registered office and registered agent. Plaintiff also cites Fla. Stat. § 48.081, for the proposition that a corporation may be served with process on its registered agent. But neither of these authorities alone support Plaintiff's position that service on a concierge specialist was sufficient to effect service on Defendant.
Plaintiff also relies on Latham v. Bonita Dental Care, P.A., No. 2:20-cv-316-FtM-66MRM, 2020 WL 10355013 (M.D. Fla. Sept. 1, 2020), in which the Court notably denied Clerk's default as to one defendant for which the plaintiff failed to demonstrate the defendant's non-compliance with the registered agent/office requirements of Fla. Stat. § 48.091. Id. at *2-3. And to the extent that Plaintiff relies on Latham for the proposition that service on a concierge specialist was proper in the absence of the registered agent, the return of service here does not state that the registered agent was absent, does not state that “Jennifer L." was the employee of the registered agent, and does not state that “Jennifer L." was a designated receiver for the registered agent. Id. at *3. See Doc. No. 12-2; see also Fla. Stat. §§ 48.081(2), 48.091(4).
Accordingly, absent legal authority supporting Plaintiff's position that service was proper, the renewed motion (Doc. No. 12) will be DENIED without prejudice. The Court will provide one final opportunity for Plaintiff to demonstrate that the April 19, 2024 service was proper. A renewed motion, which shall be filed within fourteen (14) days of the date of this Order, must establish, with citation to applicable legal authority, that service of process on Defendant by serving “Jennifer L. as Concierge Specialist” was proper under governing law.
Assumptions by Plaintiff and a process server who did not effect service in this case are alone insufficient.
Alternatively, the Court notes that the time period for service has not yet elapsed should Plaintiff instead wish to re-serve Defendant. See Fed.R.Civ.P. 4(m).
DONE and ORDERED.