Thomas Cook UK Ltd. v. Maesbury Homes, Inc.

280 F.R.D. 649, 2012 WL 714814, 2012 U.S. Dist. LEXIS 28330
CourtDistrict Court, M.D. Florida
DecidedMarch 5, 2012
DocketCase No. 6:11-cv-1991-Orl-31DAB
StatusPublished
Cited by1 cases

This text of 280 F.R.D. 649 (Thomas Cook UK Ltd. v. Maesbury Homes, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas Cook UK Ltd. v. Maesbury Homes, Inc., 280 F.R.D. 649, 2012 WL 714814, 2012 U.S. Dist. LEXIS 28330 (M.D. Fla. 2012).

Opinion

ORDER

GREGORY A. PRESNELL, District Judge.

This cause comes before the Court on Plaintiffs Motion for Final Default Judgment against Defendant (Doc. No. 14), filed January 31, 2012.

On February 15, 2012, the United States Magistrate Judge issued a report (Doc. No. 15) recommending that the motion be granted. No objections have been filed. Therefore, it is ORDERED as follows:

1. The Report and Recommendation is CONFIRMED and ADOPTED as part of this Order.

2. The Plaintiffs Motion for Final Default Judgment against Defendant is GRANTED.

3. The Clerk is directed to enter default judgment in favor of Plaintiff and against Defendant in the amount of $2,067,351.00, plus prejudgment interest in the amount of $353,248.02. The Clerk is further directed to thereafter close the file.

Report And Recommendation

DAVID A. BAKER, United States Magistrate Judge.

TO THE UNITED STATES DISTRICT COURT

This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: RENEWED MOTION FOR ENTRY OF DEFAULT JUDGMENT ON THE PLEADINGS (Doc. No. 14)
FILED: January 31, 2012
THEREON it is RECOMMENDED that the motion be GRANTED.

[651]*651On December 15, 2011, Plaintiff Thomas Cook UK Ltd., filed a Complaint against Maesbury Homes, Inc. for for breach of contract, account stated, and open account pursuant to an agreement between the parties for rental of villas, condominiums, and town-homes owned by Defendant. Doc. 1. Plaintiff now seeks a final default judgment on its claims, and for damages in excess of $2 million.

Following service of process on Defendant Maesbury Homes, Inc. on December 16, 2011, Defendant failed to timely respond. Doe. 7. Defendant was served via service on its registered agent, R & A Agents, Inc., Melissa Gurlacz as authorized employee of the Defendant-corporation’s Registered Agent at 350 E. Las Olas Blvd., Suite 1150, Ft. Lauderdale, Florida 33301.1 Doc. 7. Pursuant to Federal Rules of Civil Procedure 4(h)(1) service on corporations, partnerships or other unincorporated associations within a judicial district of the United States is accomplished in the same way as service on individuals in accordance with Rule 4(e)(1) or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to received service of process. F.R.C.P. 4(h)(1). Under Rule 4(e), service is accomplished in accordance by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made or by delivering a copy to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. Pro. 4(e).

Florida Statute § 48.081(3)(a) allows process to be served on the registered agent of a corporation, however, if service cannot be made on a registered agent because of failure to have a registered agent available in the office during 10 a.m. to 12 noon each day, service of process shall be permitted on any employee at the corporation’s principal place of business. See SunTrust Bank v. Electronic Wireless Corp., 23 So.3d 774, 776-77 (Fla. 3rd DCA 2009) (citing Fla. Stat. § 48.091(2)).

Service in this ease, made on an employee of the registered agent was effective service against the Defendant-corporation pursuant to Florida Statute § 48.081(3)(a). The statute reads in pertinent part:

(1) Process against any corporation, domestic or foreign, may be served:
(a) On the president or vice president, or other head of the corporation;
(b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or
(d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph(c), on any office or business agent residing in the state.
if:
(3)(a) As an alternative to all the foregoing, process may be served on the agent designated by the corporation under s. 48.0912. However, if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation’s principal place of business or on any employee of the registered agent. A person attempting to serve process pursuant to this paragraph may serve the process on any employee of the registered agent during the first attempt at service even if the registered agent is temporarily absent from his or her office.

Fla. Stat. § 48.081 (emphasis added). Service of process was proper under § 48.081 because the person attempting to serve process served “any employee of the registered agent during the first attempt at service.” Fla. Stat. § 48.081.

[652]*652Plaintiff moved for entry of a clerk’s default against Defendant on January 10, 2012. Doc. 8. The Clerk entered default on January 12, 2012. Doc. 9. Plaintiff now moves for a default judgment against the Defendant and has filed the supporting Affidavit of Philip Poile (Doc. 14-2); the matter is now ripe for resolution.

Analysis

Plaintiff moves for default judgment on its claims for breach of contract, account stated, and open account pursuant to an agreement between the parties for rental of villas, condominiums, and townhomes owned by Defendant. Doe. 1. A district court may enter a default judgment against a properly served defendant who fails to defend or otherwise properly appear pursuant to Federal Rule of Civil Procedure 55(b)(2); Directv, Inc. v. Griffin, 290 F.Supp.2d 1340, 1343 (M.D.Fla.2003). Plaintiff contends that it is entitled to recover $2,067,351.00 for breach of the contractual agreement. Doc. 1. The Court finds that Defendant’s failure to timely respond to the Complaint and subsequent entry of default served to admit the well pled allegations of the Complaint. See, e.g., Cotton v. Mass. Mut. Life Insurance Co., 402 F.3d 1267, 1278 (11th Cir.2005) (in defaulting, defendants “admit the plaintiffs well-pleaded allegations of fact”); Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir.1987) (same).

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280 F.R.D. 649, 2012 WL 714814, 2012 U.S. Dist. LEXIS 28330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-cook-uk-ltd-v-maesbury-homes-inc-flmd-2012.