Opinion
Case No. 2:08-cv-553-FtM-36SPC.
May 17, 2011
ORDER
This matter comes before the Court Sua Sponte upon Review of the Plaintiff, Charlie Lee Thomas's Motion for Entry of Default (Doc. #100) filed on July 7, 2010. On July 9, 2010, Magistrate Judge Gustave J. DiBianco issued an Order (Doc. # 102) denying the Plaintiff's Motion for Default. However, the Order did not address the Motion for Default against the City of Punta Gorda.
On May 12, 2010, the District Court issued an Order to Show Cause inquiring why the Complaint against the City of Punta Gorda should not be dismissed. The Plaintiff responded that on November 26, 2008, the Plaintiff served the City of Punta Gorda with a Waiver of Summons. The Waiver was duly signed by Lawrence J. Friedman, the Mayor of Punta Gorda at that time. However, pursuant to Fed.R.Civ.P. 4(j), service on a local government can only be effectuated by serving the chief executive of the local government with a summons and complaint. Waiver of Service only applies to corporations and individuals. Fed R. Civ. P. 4(d). Thus, the service upon the City of Punta Gorda was ineffectual and the Motion for Default against the City of Punta Gorda should have been denied at that time.
The Court further notes that in an Order dated May 17, 2011, the District Court allowed the Plaintiff an additional sixty (60) days (Doc. # 110) to complete service upon the City of Punta Gorda. Therefore, the Plaintiff may proceed to effectuate service against the City of Punta Gorda in accord with the District Court's Order.
Accordingly, it is now
ORDERED:
The Plaintiff, Charlie Lee Thomas's Motion for Entry of Default against the City of Punta Gorda (Doc. # 100) is DENIED. The Plaintiff may proceed to effectuate service against the City of Punta Gorda in accord with the District Court's directive in its Order.
DONE AND ORDERED at Fort Myers, Florida.