Opinion
Case No. 3:11-cv-1241-J-37MCR
08-20-2012
FIREMAN'S FUND INSURANCE CO., et al, Plaintiffs, v. LANDSTAR RANGER, INC., Defendant.
ORDER
THIS CAUSE is before the Court on Defendant/Third Party Plaintiff, Landstar Ranger, Inc.'s Motion for Entry of Default against Third Party Defendant, Got Your Back Pilot Cars, LLC (Doc. 26) filed August 17, 2012. Rule 55(a), Federal Rules of Civil Procedure, provides for entry of clerk's default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend."
In order to obtain entry of a clerk's default, a plaintiff must first effect service of the summons and the complaint properly on the defendant within 120 days of filing the action as required by Rule 4(m). See Maryland State Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996) (finding "service of process must be effective under the Federal Rules of Civil Procedure before a default judgment may be entered against a defendant.") (citations omitted). Rule 4(h) of the Federal Rules of Civil Procedure requires service of process be made upon a corporation by: (1) "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 and - if the agent is one authorized by statute and the statute so requires - by also mailing a copy of each to the defendant;" or (2) following the state law for serving a summons in the state where the district court is located or where service is made, as prescribed in Rule 4(e)(1). Rule 4(h)(1), Fed.R.Civ.P. Here, the proof of service (Doc. 24) indicates an individual was served. As Got Your Back Pilot Cars, LLC is clearly a corporation, the Proof of Service does not show proper service.
Accordingly, after due consideration, it is
ORDERED:
Defendant/Third Party Plaintiff, Landstar Ranger, Inc.'s Motion for Entry of Default against Third Party Defendant, Got Your Back Pilot Cars, LLC (Doc. 26) is DENIED without prejudice.
DONE AND ORDERED in Chambers in Jacksonville, Florida this 20th day of August, 2012.
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MONTE C. RICHARDSON
UNITED STATES MAGISTRATE JUDGE
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