MASSIMILIANO TORTORA AND CRISTINA BRAIATO
v.
MANNYS CUCINA NAPOLETANA LLC, EMANUELE FERRAIULO AND TINAMARIE LORI
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Plaintiffs Tortora and Braiato sought default judgment against defendants Manny's Cucina Napoletana LLC and two individuals. The court denied the motion for default without prejudice due to procedural deficiencies, including lack of timeliness, failure to provide legal memorandum, and insufficient demonstration of proper service.
The court denied the motion for default without prejudice because: (1) the motion was patently untimely with no explanation; (2) the motion failed to include a required memorandum of legal authority; and (3) the motion failed to demonstrate by citation to legal authority or otherwise that each defendant was properly served.
[1] A motion for default judgment must be supported by a memorandum of legal authority as required by local rules.
[2] A court must determine that a defendant was properly served before a clerk's default can be entered.
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Join FLexlaw to unlock all legal intelligence“before a Clerk's default can be entered against a defendant, the Court must determine that the defendant was properly served”
Establishes the legal prerequisite for entry of default judgment—proper service must be demonstrated
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Join FLexlaw to unlock all legal intelligencePlaintiffs filed a motion for default against three defendants in a civil action. The returns of service contained inconsistent and differing statemen…
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Before the Court is Plaintiff's Motion for Default Against Defendants. Doc. No. 12. Upon consideration, the motion will be DENIED without prejudice.
First, the motion is patently untimely, with no explanation. See Local Rule 1.10(b), (d). Second, the motion fails to include a memorandum of legal authority as required by Local Rule 3.01(b) — a lone citation to Rule 55(a) does not suffice. Third, and relatedly, the motion fails to demonstrate, by citation to legal authority or otherwise, that each Defendant was properly served. See generally United States v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357, at *1 (M.D. Fla. June 24, 2009)
(before a Clerk's default can be entered against a defendant, the Court must determine that the defendant was properly served). [fn 1]
Accordingly, it is ORDERED that Plaintiff's motion (Doc. No. 12) is DENIED without prejudice. Within fourteen (14) days of the date of this Order, Plaintiff shall SHOW CAUSE in writing why this matter should not be dismissed without prejudice for failure to timely seek default. See Local Rule 1.10(b), (d).
DONE and ORDERED in Orlando, Florida on December 1, 2025.
Uslis Han Price
LESLIE HOFFMAN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to: Counsel of Record Unrepresented Parties
[fn 1]: Notably, the returns of service provide differing and inconsistent statements as to how service was effected on each Defendant. As it relates to Mannys Cucina Napoletana LLC, the return first states that service was effected on "John Doe,” with Plaintiff failing to address how service on said Jonn Doe would suffice. Doc. No. 11. Then, however, the return states that documents were left with "the son of one of the defendants" at a residence. Id. As to Emanuele Ferraiuolo, the return first states that the documents were left with a roommate, then the return states that they were left with “the son of one of the defendants." Doc. No. 9; see also Doc. No. 10.