Johnson v. Apex Hospitality, LLLP
2:15-cv-00555
M.D. Fla.
Mar 23, 2016
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Docket

ALEXANDER JOHNSON, Plaintiff, v. APEX HOSPITALITY, LLLP d/b/a BEST WESTERN FORT MYERS INN AND SUITES, Defendant.

Case No: 2:15-cv-555-SPC-CM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

March 23, 2016

ORDER

Before the Court is Plaintiff’s Motion for Entry of Clerk’s Default Against Defendant Apex Hospitality, LLLP (Doc. 10), filed on February 17, 2016. Plaintiff moves, pursuant Federal Rule of Civil Procedure 55(a), for entry of Clerk’s default against Defendant Apex Hospitality, LLLP for failure to respond to the Complaint. For the reasons that follow, the motion is due to be granted.

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, Rule 1.07(b) of the Local Rules for the 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. .

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). Florida Statutes Section 48.081 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). Alternatively, however, process may be served on a registered agent of the corporation, or an employee of the registered agent. Id. § 48.081(3)(a).

Here, the Return of Service (Doc. 8) states that on October 7, 2015, Plaintiff’s process server delivered a true copy of the Summons and Complaint upon Kan Patel,1 as Manager for Apex Hospitality, LLLP d/b/a Best Western Inn and Suites, at 17761 San Carlos Boulevard, Fort Myers Beach, FL 33931. Doc. 8. Affidavits by process servers constitute a prima facie showing that defendants have been served. (unsworn and unsigned letters insufficient to call into question prima facie evidence of service consisting of process server’s sworn return); . Section 48.081(1)(b) of the Florida Statutes states that process may be served on a general manager, thus service of process was properly effected under Federal Rule of Civil Procedure 4(h)(1)(A), (e)(1) and Fla. Stat. § 48.081(1)(b).

Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A), a defendant must serve an answer within twenty-one days after being served with the summons and complaint. Apex Hospitality, LLLP 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:

Plaintiff‘s Motion for Entry of Clerk’s Default Against Defendant Apex Hospitality, LLLP (Doc. 10) is GRANTED. The Clerk is directed to enter a Clerk’s Default against Defendant Apex Hospitality, LLLP.

DONE and ORDERED in Fort Myers, Florida on this 23rd day of March, 2016.

CAROL MIRANDO

United States Magistrate Judge

Copies:

Counsel of record

Notes

1
Plaintiff intended to serve the summons on Sanmukh Swami as Registered Agent for Apex Hospitality LLLP. Doc. 8.
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