SHADEK
v.
KIDD
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In this civil case involving claims of elderly abuse, fraudulent misrepresentation, and other torts, the court granted plaintiff's motion for entry of clerk's default against defendant Kidd for failure to respond to the complaint within 21 days of service. The decision reflects straightforward application of Federal Rules of Civil Procedure 55(a) and 4(e) regarding service of process and default procedures.
The court granted plaintiff's motion for entry of clerk's default. The court found that effective service of process was perfected on defendant pursuant to Federal Rule of Civil Procedure 4(e) through personal service on June 7, 2024, and that because more than 21 days had elapsed without responsive pleading, default was appropriate under Federal Rule of Civil Procedure 55(a).
[1] A clerk must enter a party's default when that party has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.
[2] Before a clerk may enter default, the clerk must determine that effective service has been made on the defaulting defendant, as effective service is a prerequisite for ju…
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Join FLexlaw to unlock all legal intelligence“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.”
Establishes the legal standard for entry of clerk's default under Federal Rule of Civil Procedure 55(a)
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a complaint against defendant Tamara S. Kidd on May 23, 2024, alleging elderly abuse, fraudulent misrepresentation, fraudulent inducem…
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This cause comes before the Court on Plaintiff's Motion for Entry of Clerk's Default against Defendant Tamara S. Kidd (the "Motion") (Doc. 14), filed July 22, 2024. For the reasons set forth below, the Motion is due to be granted.
I. BACKGROUND
On May 23, 2024, Plaintiff filed a Complaint against Defendant for elderly abuse, fraudulent misrepresentation, fraudulent inducement, civil theft, and promissory estoppel. (Doc. 1 ¶ 1.) The Proof of Service affidavit reflects that Defendant was personally served on June 7, 2024. (Doc. 13.) Plaintiff now seeks entry of a clerk's default against Defendant for her failure to appear in this case. (Doc. 14.)
II. LEGAL STANDARD
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). Before the clerk may enter default, he or she must determine that effective service has been made on the defaulting defendant because, without effective service, there is no jurisdiction and no obligation to answer or “otherwise defend.” See Kelly v. Florida, 233 F. App'x 883, 885 (11th Cir. 2007) (unpublished).
III. DISCUSSION
Federal Rule of Civil Procedure 4(e) provides that service on an individual may be perfected by "delivering a copy of the summons and of the complaint to the individual personally.” Fed. R. Civ. P. 4(e)(2)(A). The Proof of Service indicates that Defendant was personally served. (Doc. 13.) As a result, the Court finds that Plaintiff perfected service of process on Defendant pursuant to Federal Rule of Civil Procedure 4(e). As Defendant was served on June 7, 2024, and more than 21 days have passed with no responsive pleading filed, default is appropriate. Fed. R. Civ. P. 12(a)(1)(A)(i).
IV. CONCLUSION
Accordingly, it is hereby ORDERED as follows:
1. The Motion (Doc. 14) is GRANTED. 2. The Clerk is DIRECTED to enter default against Defendant Tamara S. Kidd.
DONE and ORDERED in Orlando, Florida on August 27, 2024.