SECURITIES AND EXCHANGE COMMISSION
v.
PALLESCHI

M.D. Fla. | 2021-09-09
No. 2:21-cv-530
508 F. Supp. 2d 1079 District Court, M.D. Florida (2021) Positive Treatment
Cited by 22 cases

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Holding

The court denied the SEC's motion for clerk's default because it was not properly served on the defendant.

Facts & Procedural History

The SEC filed a motion for clerk's default against Defendant Michael Palleschi for failing to respond to the Complaint. The SEC did not file a certifi…

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Topics
Certificate Of Service Fed. R. Civ. P. 55 Clerk'S Default

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Opinion of the Court

Before the Court is Plaintiff’s Motion for Entry of Clerk’s Default Against Defendant Michael Palleschi (Doc. 9). Defendant Palleschi has not responded to the Complaint, and now the SEC requests the Court enter a clerk’s default against Palleschi. (Doc. 9). For the reasons discussed below, the Court denies the motion without prejudice. Unless and until a party is held in default for failure to appear, every party is entitled to service of all written motions. Fed. R. Civ. P. 5(a). And unless a party is served by filing a motion with the Court’s electronic filing system, a certificate of service must accompany the motion. Fed. R. Civ. P. 5(d)(1)(B). “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 v. Taos Ventures, LLC, No. 5:13-cv-529-OC- PRL, 2014 WL 12625121, *1 (M.D. Fla. Mar. 21, 2014) (quoting Capitol Records

v. Carmichael, 508 F. Supp. 2d 1079, 1083 n.1 (S.D. Ala. 2007)); see also U.S. Bank, N.A. as trustee for LSF& Master Participation Tr. v. Tobin, 754 F. App’x 843, 846 (11th Cir. 2018) (affirming default judgment when defendants failed to show they were not served with the motion for clerk’s default); Allstate Ins. Co. v. Airport Mini Mall, LLC, No. 1:15-CV-1422-AT, 2015 WL 13333577, *1 (N.D. Ga. Nov. 23, 2015) (denying motion for clerk’s default that was not accompanied by a proper certificate of service). Here, Plaintiff did not file a certificate of service with its Motion for Clerk’s Default, and there is no other indication in the record that Plaintiff served this motion on Defendant. (See Doc. 9). Accordingly, the Motion for Entry of Default (Doc. 9) is DENIED without prejudice. ORDERED in Fort Myers, Florida on September 9, 2021.

Lida Ee La ell.

NICHOLAS P. MIZEL

UNITED STATES MAGISTRATE JUDGE

_2-

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Citator

Cited By (22 total)

  • Sec. & Exch. Comm'n v. Palleschi, 508 F. Supp. 2d 1079 (M.D. Fla. 2021)
    …hed from motions for default judgment), and Rule 5(a) on its face requires such service.” PNC Equip. Fin., LLC v. Taos Ventures, LLC, No. 5:13-cv-529-OC- PRL, 2014 WL 12625121, *1 (M.D. Fla. Mar. 21, 2014) (quoting Capitol Records v. Carmichael, 508 F. Supp. 2d 1079, 1083 n.1 (S.D. Ala. 2007)); see also U.S. Bank, N.A. as trustee for LSF& Master Participation Tr. v. Tobin, 754 F. App’x 843, 846 (11th Cir. 2018) (affirming default judgment when defendants failed to show they were not served with the motion fo…
  • Baloa Diaz v. Edi Korta, LLC (S.D. Fla. 2024)
    …o download, stream, share, or reproduce copies of Copyright Plaintiffs' Works . . ., these subscribers directly infringe Plaintiffs exclusive rights of public performance, distribution, and reproduction."); see also Capitol Recs. v. Rita Carmichael, 508 F. Supp. 2d 1079, 1084-85 (S.D. Ala. 2007) (finding allegations that an infringer used and continued to use an online media distribution system to download and distribute copyrighted works without permission were sufficient to give rise to a cognizable claim for dir…
  • Sirer v. Aksoy (S.D. Fla. 2022)
    …2006) (default judgment within district court’s direction). A defendant’s “failure to appear and the Clerk’s subsequent entry of default against him do[es] not automatically entitle Plaintiff to a default judgment.” Capitol Records v. Carmichael, 508 F. Supp. 2d 1079, 1083 (S.D. Ala. 2007). Indeed, a default is not “an absolute confession by the defendant of his liability and of the plaintiff’s right to recover,” Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1357 (S.D. Ga. 2004), but inste…

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