RYAN
v.
WELLS FARGO, NA

M.D. Fla. | 2024-09-20
No. 3:24-cv-805
2024 FFL 23316 District Court, M.D. Florida (2024)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The district court denied plaintiff's motion for entry of clerk's default against Wells Fargo Bank without prejudice because the motion failed to comply with Federal Rules of Civil Procedure Rule 5 regarding service requirements and inadequately addressed proper service of process.


Holding

The motion for entry of clerk's default was denied without prejudice because it failed to comply with Rule 5's service requirement and did not adequately articulate how service on the identified individual was sufficient under law. Any renewed motion must comply with Rule 5 and include proper citations to authority regarding service of process.


Key Quotes

“Rule 5(a)(1)(D) of the Federal Rules of Civil Procedure ("Rule(s)") "requires that written motions be served on every party and that a certificate of service be filed with motions."”

Establishes the foundational requirement for service of motions that plaintiff's motion failed to satisfy

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Plaintiff filed a motion for entry of clerk's default against Wells Fargo Bank. The motion included a certificate of service stating only that it was …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court

This cause is before the Court on Plaintiff's Motion for Entry of Clerk's Default ("Motion"). Doc. 12. The Motion is due to be denied without prejudice.

Rule 5(a)(1)(D) of the Federal Rules of Civil Procedure (“Rule(s)”) “requires that written motions be served on every party and that a certificate of service be filed with motions. ‘Nothing in the text of Rule 55 excuses the service requirement for requests for entry of default (as distinguished from motions for default judgment), and Rule 5(a) on its face requires such service.” PNC Equip. Fin., LLC, 2014 WL 12625121, at *1 (quotation omitted); see also Ferrara Candy Co. v. Exhale Vapor LLC, No. 2:17-cv-512-FtM-38MRM, 2017 WL 10591766, at *1 (M.D. Fla. Nov. 27, 2017). Here, Plaintiff's Motion gives no indication it was ever served on Defendant. Though it includes a certificate of service, such states merely that the Motion was filed via CM/ECF not that Defendant (who has yet to appear to receive electronic service via CM/ECF) was served with the Motion. See Doc. 12 at 3. Thus, because it fails to comply with Rule 5, the Motion is due to be denied without prejudice.

In addition, the Motion's terse discussion makes no effort to articulate how service upon "Gina Cabrera, Branch Operations" was sufficient under applicable law. Proper service is a prerequisite to a clerk's default, and any renewed motion should adequately address, with citations to authority, why service of process on Defendant was proper. See Staley v. Health First, Inc., No. 6:24-cv-621-CEM-LHP, 2024 WL 2815858, at *1 (M.D. Fla. June 3, 2024).

Accordingly, Plaintiff's Motion for Entry of Clerk's Default (Doc. 12) is denied without prejudice.

DONE AND ORDERED in Jacksonville, Florida, on September 20, 2024.

Samuel J. Horovitz United States Magistrate Judge

Copies to: Counsel of Record


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw