The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KRISTIN PHILDIUS,
Plaintiff,
v. Case No. 2:24-cv-105-JLB-KCD
THE INDIVIDUALS,
PARTNERSHIPS, AND
UNINCORPORATED
ASSOCIATIONS IDENTIFIED ON
SCHEDULE A, DISHAILI,
FAIIVE, FUHAI FAMILY,
OOOFAYEOOO, WHAXSI and
YOU LOOK SO YOUNG,
Defendants.
/
ORDER
Plaintiff Kristin Phildius moves for a final judgment against several
defendants who have not appeared and are in default. (Doc. 73.)1 For the
reasons below, her motion is denied without prejudice.
I. Background
The Court takes the facts below from the complaint, which are admitted
by the defendants’ default. Phildius is an artist “known for her seashell
sculptures and creations.” (Doc. 1 ¶¶ 10-11, 12.) Her “original seashell
1 Unless otherwise indicated, all internal quotation marks, citations, case history, and
alterations have been omitted in this and later citations.
sculptures, as well as the photographs used to advertise, market, promote, and
sell her three-dimensional artworks are protected by copyright and registered
with the Copyright Office.” (Id. ¶ 20.)
Phildius filed this action against ninety-five e-commerce stores that “are
promoting, selling, offering for sale and distributing goods bearing or using
unauthorized reproductions or derivatives of [her] Copyrighted Works.” (Id. at
1-2.) The defendants “either reside and/or operate in foreign jurisdictions.” (Id.
¶ 29.)
Phildius first sought to serve the stores by email and a website posting.
(See Doc. 13.) But the Court denied her motion for disregarding Rule 4. (See
Doc. 16.) Rather than attempt service under any applicable international
agreement—as required by Rule 4—Phildius attempted service through
Florida’s Secretary of State under Florida Statute § 48.181. (Doc. 73 at 2-3, see
Doc. 42-1 at 12, 15, see also Doc. 43-1 at 33, 43.) She has since dismissed most
of the stores, and only four remain: Dishalili, Faiive, Whaxsi, and You Look so
Young (collectively “Defendants”). (See Doc. 69, Doc. 73.)
Defendants have not answered or otherwise appeared, and the Clerk
entered defaults against them. (Doc. 58.) Phildius now seeks a final default
judgment. (Doc. 73.)
II. Standard of Review
“When a defendant has failed to plead or defend, a district court may
enter judgment by default.” Golembiewski v. Waters Pointe Apartments, LLC,
No. 8:23-CV-00081-KKM-AEP, 2023 WL 4931218, at *2 (M.D. Fla. June 27,
2023). “The Federal Rules of Civil Procedure establish a two-step process for
obtaining default judgment.” Petition of Daytona Beach Aqua Safari, Inc. v.
Castle, No. 6:22-CV-740-CEM-DCI, 2023 WL 2329090, at *1 (M.D. Fla. Feb.
10, 2023). First, when a defendant “fails to plead or otherwise defend,” the
Clerk enters default. Id. By defaulting, the defendant admits the well-pleaded
factual allegations in the complaint. Eagle Hosp. Physicians, LLC v. SRG
Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009). “Second, after obtaining
[a] clerk’s default, the plaintiff must move for default judgment.” Daytona
Beach Aqua Safari, Inc., 2023 WL 2329090, at *1.
“Before entering default judgment, the court must ensure that it has
jurisdiction over the claims and parties, and that the well-pled factual
allegations in the complaint, which are assumed to be true, adequately state a
claim for which relief may be granted.” Golembiewski, 2023 WL 4931218, at
*2. “The validity of an order of a federal court depends upon that court’s having
jurisdiction over both the subject matter and the parties.” Nu Image, Inc. v.
Does 1-3,932, No. 2:11-CV-545-FTM-29, 2012 WL 1890829, at *2 (M.D. Fla.
May 24, 2012).
III. Analysis
“The Due Process Clause . . . protects an individual’s liberty interest in
not being subject to the binding judgments of a forum with which he has
established no meaningful contacts, ties, or relations.” Thomas v. Brown, 504
F. App’x 845, 847 (11th Cir. 2013). Thus, before entering default judgment, the
reviewing court must verify that service was proper and it has jurisdiction over
the parties. Golembiewski, 2023 WL 4931218, at *3; United States v. Joseph,
No. 8:23-CV-1015-KKM-JSS, 2023 WL 8261327, at *2 (M.D. Fla. Nov. 8, 2023)
(“A plaintiff bears the burden to establish proper service of the complaint on
the defaulting party to obtain a default judgment.”). “Where service of process
is invalid, the court lacks jurisdiction over a defendant.” Baxter v. Miscavige,
No. 8:22-CV-986-TPB-JSS, 2023 WL 1993969, at *3 (M.D. Fla. Feb. 14, 2023).
“Federal Rule of Civil Procedure 4 provides the methods by which a
plaintiff may serve process on a defendant.” Id. The rule imposes different
requirements depending on whether the party to be served is within a judicial
district of the United States or a foreign country and is an individual, rather
than a corporation, partnership, or association. See Fed. R. Civ. P. 4 (e), (f), (h).
It is unclear which provision of Rule 4 applies here because Phildius has
not told the Court whether Defendants are individuals, partnerships, or
unincorporated associations. She also failed to identify where they reside
beyond stating, “all Defendants are located in foreign jurisdictions, mostly
China.” (Doc. 1 ¶ 51.) Those elementary failures doom her motion since it was
her burden to show personal jurisdiction. Joseph, 2023 WL 8261327, at *2. But
even analyzing each potentially applicable section of Rule 4, the same result
follows.
As mentioned, Defendants “either reside and/or operate in foreign
jurisdictions,” (Doc. 1 ¶ 29.) “There are two rules of federal civil procedure that
apply to service of process upon an international entity located outside of
United States jurisdiction: Fed. R. Civ. P. 4(f) (Service Upon Individuals in a
Foreign Country) and Fed. R. Civ. P. 4(h) (Service of Process Upon
Corporations and Associations).” Prewitt Enterprises, Inc. v. Org. of Petroleum
Exporting Countries, 353 F.3d 916, 921 (11th Cir. 2003).
If Defendants are “foreign corporation[s], or a partnership or other
unincorporated association[s],” Rule 4(h) provides that service must be
completed “in any manner prescribed by Rule 4(f) for serving an individual,
except personal delivery under (f)(2)(C)(i).” Id.
Turning to Rule 4(f), it says service may be effected “by any
internationally agreed means of service that is reasonably calculated to give
notice” or “if there is no internationally agreed means, or if an international
agreement allows but does not specify other means, by a method that is
reasonably calculated to give notice.” Fed. R. Civ. P. 4(f)(1), (2). Alternatively,
a plaintiff may serve process “by other means not prohibited by international
agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3).
The Court denied Phildius’ request to serve Defendants by alternative
means under Rule 4(f)(3). And it cannot tell whether she complied with Rule
4(f)(1) or (f)(2) since it is unknown where Defendants reside or if there are any
international agreements governing service. Any assertion that Phildius
complied with Rule 4(h) or Rule 4(f) thus falls flat.
Phildius did attempt service using Florida’s Secretary of State under
Florida Statute § 48.181. But this was improper since Defendants are
admittedly “located in foreign jurisdictions.” (Doc. 1 ¶ 51.) A similar situation
was addressed in Cayago Tec GmbH v. iAQUA (Hong Kong) Ltd., 664 F. Supp.
3d 1361 (S.D. Fla. 2023). There, the plaintiffs tried to serve a Chinese company
by personally serving its managing director, who happened to be present in
Florida. The court quashed service because the defendant was organized under
the laws of another country and did not have an office or place of business in
the United States. Thus, service needed to be made “by means specified in an
international agreement or in a manner that does not offend an international
agreement” under Rule 4(f). Id. at 1364.
Phildius has not alleged that Defendants are organized under the laws
of the United States. Nor does she contend they have offices or places of
business in the United States. While Florida’s Secretary of State may be found
within a judicial district of the United States, the Court is persuaded by the
reasoning in Cayago Tec, which forecloses any argument that Phildius
complied with Rule 4 by serving the Secretary. See Cayago Tec GmbH, 664 F.
Supp. 3d at 1364.
One last thing. Even if Phildius could proceed under Florida Statute §
48.181 here, she disregarded some of the statute’s requirements. For instance,
when serving process under § 48.181, a plaintiff must also comply with §
48.161, which directs them to file an affidavit “set[ting] forth the facts that
justify substituted service [on the Secretary] and that show due diligence was
exercised in attempting to locate and effectuate personal service on the party
before using substituted service[.]” Fla. Stat. § 48.161(2). Phildius has not filed
an affidavit detailing her due diligence. See Fla. Stat. § 48.161(4). In fact, it is
unlikely she tried to effect personal service before turning to the Secretary of
State since she attempted service on Defendants and ninety-one other e-
commerce stores via the Secretary of State less than a month after the Court
denied her request to serve process via alternative means. (Doc. 16, Doc. 35.)
Phildius bore the burden of establishing proper service. Joseph, 2023 WL
8261327, at *2. She has not done so. Accordingly, the Renewed Motion for
Entry of Final Judgment by Default as to Certain Defendants Identified on
Schedule “A” And Incorporated Memorandum of Law (Doc. 73) is DENIED
WITHOUT PREJUDICE. To award a final judgment here, Phildius must
provide proof of service in compliance with Fed. R. Civ. P. 4.
ORDERED in Fort Myers, Florida on November 12, 2024.
pf =
be
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* Kale C. Dudek
United States Magistrate Judge
Copies: All Parties of Record