Opinion
CASE NO. 3:09-CV-147-J-32HTS.
June 24, 2009
ORDER
This cause is before the Court on the Application and Declaration for Entry of Defendant's Default (Doc. #8; Application).
Rule 55(a), Federal Rules of Civil Procedure (Rule(s)), provides for entry of a clerk's default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend[.]" However, "[i]n 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[.]" Barker v. Sai Deva Corp., No. 3:08-cv-683-J-12MCR, 2008 WL 4791049, at *1 (M.D. Fla. Oct. 29, 2008); see also Houraney v. Schley, No. 08-80837-Civ., 2009 WL 507032, at *1 (S.D. Fla. Feb. 27, 2009) ("Unless and until the Defendants are properly served . . ., none of the named Defendants is a party to th[e] action.").
Plaintiff represents that Mr. Donald "was personally served with copies of Plaintiff's Summons and Complaint as provided by Rule 4(c)(1)[.]" Application at 1. Yet, the Affidavit of Service, attached to the Notice of Filing (Doc. #7), at 3 (emphasis and capitalization omitted), details the service as follows:
Posted by attaching a true copy of the Summons in a Civil Case and Complaint with the date and hour of service endorsed thereon by [the server], to a conspicuous place on the property of the within named person's residence at the address of: 446 Sherwood Oaks Drive, Orange Park, Fl 32073. . . . Server has made numerous attempts to get anyone to open the door. Ms. Donald (ex-wife) says [Defendant] hasn[']t lived there in quite some time during previous serves. Per client post on door.
Such does not appear to meet any of the approved methods of service outlined in Rule 4(e)(2), and Plaintiff fails to point to any state law approving this procedure.
Accordingly, the Application (Doc. #8) is DENIED without prejudice.
DONE AND ORDERED at Jacksonville, Florida.