KINSALE INSURANCE COMPANY
v.
TORO JAX PROPERTY I, LLC

M.D. Fla. | 2024-09-20
No. 3:24-cv-831
2014 WL 12625121 2024 FFL 23341 District Court, M.D. Florida (2024) Positive Treatment
Also reported at: 2017 WL 10591766
Cited by 4 cases

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Synopsis

Kinsale Insurance Company sought entry of default against four defendants in a civil action. The District Court denied the applications because the plaintiff failed to properly serve the defendants as required by Federal Rule of Civil Procedure 5(a)(1)(D).

Holding

The court held that plaintiff's applications for clerk's defaults failed to comply with Federal Rule of Civil Procedure 5 because there was no indication the motions were ever served on the defendants, and therefore the motions were denied without prejudice.

Headnotes

[1] A party requesting a clerk's default must serve the request on all other parties and file a certificate of service with the request.

[2] A certificate of service indicating filing via CM/ECF does not satisfy the service requirement for parties who have not appeared to receive electronic service.

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Key Quotes

“Federal Rule of Civil Procedure 5(a)(1)(D) '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.'"”

Establishes the mandatory service requirement for default motions under Federal Rule of Civil Procedure 5(a)(1)(D)

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Facts & Procedural History

Plaintiff Kinsale Insurance Company filed applications for clerk's defaults against four defendants: DC Montgomery Property, LLC; Direnzo Real Estate …

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Opinion of the Court

This cause is before the Court on Plaintiff's Applications for Clerk's Defaults Against DC Montgomery Property, LLC, Doc. 21; Direnzo Real Estate Management IV, LLC, Doc. 22; DJ Montgomery, LLC, Doc. 23; and Toro Jax Property I, LLC, Doc. 24 (collectively, “Motions”). The Motions are due to be denied without prejudice.

Federal Rule of Civil Procedure 5(a)(1)(D) “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 Motions give no indication they were ever served on Defendants. Though they each

include a certificate of service, such state merely that the Motions were filed via CM/ECF not that Defendants (who have yet to appear to receive electronic service via CM/ECF) were served with the Motions. See Doc. 21 at 4; Doc. 22 at 4; Doc. 23 at 4; Doc. 24 at 4.

Thus, because the Motions (Docs. 21-24) fail to comply with Federal Rule of Civil Procedure 5, they are 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

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Citator

Cited By

  • Kinsale Ins. Co. v. Toro Jax Prop. I, LLC, 2014 WL 12625121 (M.D. Fla. 2024)
    …ith 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 Motions give no indication they were ever served on Defendants. T…
    1 / 2
  • Jax Implants & Dentures, PLLC v. LooK Implant Supply LLC (M.D. Fla. 2025)
    …served on Defendant (who has yet to appear to receive electronic service via CM/ECF). See Doc. 12. For this additional reason, the Motion is due to be denied without prejudice. See PNC Equip. Fin., LLC v. Taos Ventures, LLC, No. 5:13-cv-529-Oc-PRL, 2014 WL 12625121, at *1 (M.D. Fla. Mar. 21, 2014) (““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.") (citation o…
    1 / 2

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