PORTER

v.

FLORIDA BOY HONEY, LLC

THIS CAUSE is before the Court on Plaintiff's Motion for Entry of Default ("Motion"). Doc. 14.

Plaintiff filed a Complaint against Florida Boy Honey, LLC (“FBH”) and Joshua Whitehead (“Whitehead"). Doc. 1. Plaintiff filed a return of service purporting to show service on March 17, 2025, on FBH. Doc. 6. Plaintiff moved for a clerk's default against FBH, Doc. 7, which was denied without prejudice, Doc. 8. Plaintiff then filed a renewed motion for clerk's default against FBH, Doc. 9, which was denied without prejudice as moot, Doc. 11, because, in the interim, on April 17, 2025, the Court struck Plaintiff's complaint as an impermissible shotgun pleading, Doc. 10.

Plaintiff filed the operative Amended Complaint, Doc. 12, on April 22, 2025. The Amended Complaint was served only by United States Mail. Id. at 10; Doc. 14 at 2. On May 14, 2025, Plaintiff filed a return of service reflecting service of the original Complaint on Whitehead on April 12, 2025. Doc. 13. Plaintiff filed the instant Motion on May 15, 2025.

Plaintiff's Motion rests on the contentions that (i) both FHB and Whitehead were properly served with process and the original Complaint; (ii) neither has appeared; (iii) no service is required on parties in default for failure to appear, except that a pleading that asserts a new claim for relief against such a party must be served in accordance with Rule 4 of the Federal Rules of Civil Procedure (“Rule(s)"); and (iv) the Amended Complaint does not set forth new claims for relief. Doc. 14. [fn 1]

Assuming service of the original Complaint was proper, [fn 2] Plaintiff's Complaint was stricken, and it has served the Amended Complaint only via United States mail. Thus, unless falling within the service exception under Rule 5(a)(2), Plaintiff is unentitled to default relief on the Motion for lack of proper service. See CliC Goggles, Inc. v. Morrison, No. 6:15-cv-621-Orl-28GJK, 2016 WL 7665442, at *2 (M.D. Fla. June 2, 2016); Dubose v. Transp. Enter. Leasing, LLC, No. 6:08-cv-385-Orl-31DAB,

2

2008 WL 11334922, at *1 (M.D. Fla. Aug. 20, 2008); see also Varnes v. Loc. 91, Glass Bottle Blowers Ass'n of U.S. & Canada, 674 F. 2d 1365, 1368 (11th Cir. 1982).

Plaintiff argues that "personal service of process was not required for service of the Amended Complaint" because "[t]he Amended Complaint does not raise any new claims, but rather simply clarifies which allegations of the Complaint pertain to which claims” and “the Amended Complaint lists the same causes of action as the initial Complaint." Doc. 14 at 5-6. While arguable, the Court is ultimately unpersuaded.

The applicable Rules “reflect a policy that a defendant should receive notice of all claims for relief upon which a court may enter judgment against him. Formal personal service impresses upon a defendant that judicial process has been invoked to effect a coercive remedy against him." Varnes, 674 F. 2d at 1368. A "defendant is entitled to take a position” on a new claim for relief and is entitled to "make [available] strategy decisions following notice of the new or additional claim for relief To facilitate this process Rule 5(a) requires the complaint be personally served pursuant to Rule 4 once the amended complaint asserts a new or additional claim for relief." Id. at 1369. In short, "[t]he concern of Rules 4 and 5(a) is notice to the defendant of claims for relief.” Id.; see also Tiger v. Gator's Dockside of Dr. Phillips, Inc., No. 6:19-cv-1935-Orl-CEM-DCI, 2019 WL 13246536, at *1-2 (M.D. Fla. Dec. 26, 2019).

Here, the Complaint—which was struck as an impermissible shotgun pleading-failed to give fair and adequate notice. Indeed, shotgun pleadings

Accordingly, it is ordered: 1. Plaintiff's Motion (Doc. 14) is denied without prejudice.

4

2. Plaintiff shall properly serve Defendants with a summons and copy of the Amended Complaint on or before July 7, 2025. Failure to do so may result in the dismissal of this action without further notice.

DONE AND ORDERED in Jacksonville, Florida, on June 5, 2025.

Samuel J. Horovitz United States Magistrate Judge

Copies to: Counsel of Record

5

[fn 1]: Under Rule 5(a)(2) “[n]o service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4.” Rule 4, in turn, does not authorize service by mail or service unaccompanied by a summons. See CliC Goggles, Inc. v. Morrison, No. 6:15-cv-621- Orl-28GJK, 2016 WL 7665442, at *2 (M.D. Fla. June 2, 2016); Amarelis v. Notter Sch. of Culinary Arts, LLC, No. 6:13-cv-54-Orl-31KRS, 2014 WL 5454387, at *3 (M.D. Fla. Oct. 27, 2014); Dubose v. Transp. Enter. Leasing, LLC, No. 6:08-cv-385-Orl-31DAB, 2008 WL 11334922, at *1 (M.D. Fla. Aug. 20, 2008).

[fn 2]: It is not entirely clear that it was. For example, Plaintiff argues that FBH was served via personal service on its registered agent, Doc. 14 at 3-4, but the return of service appears to indicate service via a private mailbox/virtual office under Fla. Stat. § 48.031(6), Doc. 6, and Plaintiff has not explained the propriety of such service. Regardless, as explained below, the Court deems service of the Amended Complaint under Rule 4 necessary.

[fn³]: Unpublished opinions are not binding precedent; however, they may be cited when persuasive on a particular point. See United States v. Futrell, 209 F. 3d 1286, 1289-90 (11th Cir. 2000); 11th Cir. R. 36-2.