Opinion
Case No. 2:10-cv-330-FtM-29SPC.
August 26, 2010
ORDER
This matter comes before the Court on Mid-Continent Casualty Co.'s Application for Entry of Default by the Clerk Against Defendant Harbor Springs Construction and Development, LLC (Doc. #15) filed on August 25, 2010. Plaintiff Mid-Continent moves pursuant to Fed.R.Civ.Proc. 55(b)(2) for an entry of a Clerk's Default against Defendant Harbor Springs Construction and Development, LLC for failure to answer the complaint or otherwise appear within 21 days as required by Fed.R.Civ.P. 12.
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).
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). "However, if service cannot be made on a registered agent because of failure of the corporation to comply with s. 48.091, service of process shall be permitted on any employee at the corporation's principal place of business or on any employee of the registered agent." Id. Section 48.091 requires that the registered agent's office remain open from 10:00 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays, and "shall keep one or more registered agents on whom process may be served at the office during these hours." Fla. Stat. § 48.091(1)-(2). 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, Plaintiff filed a Complaint for Declaratory Relief against Harbor Springs on May 21, 2010. Plaintiff attempted service on Harbor Spring's Registered Agent, Mark G. Dicowden, on numerous occasions for more than a month, but Dicowden's office was closed on each occasion and no hours were posted. Finally, on July 14, 2010, service was made on Dee Soli at Dicowden's office, who identified herself as a Legal Assistant for Dicowden.
While service must normally be effected on the registered agent himself, the Court finds that service on Dee Soli as an employee of the registered agent was proper because Dicowden was not complying with Section 48.091, which requires that the registered agent's office remain open from 10:00 a.m. to 12 noon each day. The Return of Service indicates that service was attempted on at least four occasions at the office during the hours it was closed. Thus, service was proper on July 14, 2010. To date, Defendant has failed to file a responsive pleading. Therefore, the entry of Clerk's default is appropriate.
Accordingly, it is now
ORDERED:
Mid-Continent Casualty Co.'s Application for Entry of Default by the Clerk Against Defendant Harbor Springs Construction and Development, LLC (Doc. #15) is GRANTED. The Clerk is directed to enter Clerk's default against Defendant Harbor Springs Construction and Development, LLC.
DONE AND ORDERED at Fort Myers, Florida.