The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HOUSTON CASUALTY COMPANY,
Plaintiff,
v. Case No: 6:24-cv-1140-PGB-LHP
ANGELS ON EARTH PPEC, INC. and
JOYCE DURHAM,
Defendants
ORDER
This cause came on for consideration without oral argument on the following
motion filed herein:
MOTION: HOUSTON CASUALTY COMPANY’S RENEWED
APPLICATION FOR DEFAULT AGAINST ANGELS
ON EARTH PPEC (Doc. No. 27)
FILED: November 11, 2024
THEREON it is ORDERED that the motion is DENIED without
prejudice.
On November 1, 2024, the Court denied without prejudice Plaintiff’s motion
for entry of Clerk’s default against Defendant Angels on Earth PPEC, Inc. 1
(“AOE”). Doc. No. 26. See also Doc. No. 25. The Court noted records with
Florida’s Department of State, Division of Corporations reflected that AOE is an
inactive corporation that was dissolved in February 2024,2 and that Plaintiff’s
motion did not demonstrate how its service on “Julia M. Erbiti as Vice President”
(“Erbiti”) complied with applicable law. Id., at 3 (citing Fed. R. Civ. P. 4(h), 4(e)(1);
Fla. Stat. §§ 48.081, 48.091, 48.101). See also Doc. No. 21 (return of service indicating
process was served on Erbiti).
Now before the Court is Plaintiff’s renewed motion for Clerk’s default against
AOE. Doc. No. 27. The renewed motion argues Plaintiff first attempted service
on AOE’s registered agent, Aleida D. Cabrera (“Cabrera”), but that Cabrera was
unavailable. Id., at 2 (citing Doc. No. 8 (unexecuted return of service attempted on
Cabrera)). As such, Plaintiff argues it was permitted to serve Erbiti as AOE’s vice
president. Id., at 3. See Fla. Stat. § 48.081(2) (stating corporations generally “may
1 On November 25, 2024, Presiding District Judge Paul Byron granted Plaintiff’s
motion to amend by interlineation its complaint (Doc. No. 28) to correct a scrivener’s error
to correctly identify Defendant as “Angels on Earth PPEC, Inc.” Doc. No. 29.
2 Records with Florida’s Department of State, Division of Corporations, are
available at https://search.sunbiz.org/Inquiry/CorporationSearch/ByName by entering
“Angels on Earth” in the “Entity Name” field.
be served with process required or authorized by law by service on its registered
agent designated by the corporation”); § 48.081(3)(a) (stating that if service on a
corporation’s registered agent is unsuccessful after one good faith attempt,
substitute service may be conducted on the corporation’s “chair of the board of
directors, the president, any vice president, the secretary, or the treasurer of the
domestic corporation or registered foreign corporation.”).
However, as the Court noted in its prior Order, Florida Department of State
records demonstrate that Erbiti has not been listed on any annual report for AOE
since March 2022. Doc. No. 26, at 3; see also Doc. No. 1-4. “Section 48.081 does not
authorize service on former presidents, officers, or directors, etc., of a dissolved or
existing corporation.” Mills Corp v. Amato, 72 So. 3d 814, 816 (Fla. Dist. Ct. App.
2011). See Diamond Sys., LLC v. FMC Corp., No. 6:13-cv-1303-Orl-22TBS, 2013 WL
6051531, at *3 (M.D. Fla. Nov. 15, 2013) (noting Florida case law holds serving
corporation’s former president is invalid under Sections 48.081 and 48.101); Int’l
Steel Truss Co. v. Artec Grp., Inc., 824 So. 2d 340, 342-43 (Fla. Dist. Ct. App. 2002).
(“Service on a corporation may be accomplished by serving a person listed in
section 48.081(1) only if the person legally fills the position described at the time of
such service.”).
Despite the Court previously pointing out that Erbiti is no longer listed as
AOE’s vice president, see Doc. No. 26, at 3, Plaintiff provides no evidence or
argument on this point in its renewed motion. Doc. No. 27. Plaintiff therefore
again fails to sufficiently establish that service of process on AOE was properly
made.
Accordingly, Plaintiff's renewed motion for Clerk’s default (Doc. No. 27) is
DENIED without prejudice. Plaintiff shall file a renewed motion within fourteen
(14) days of this Order, which must address, by citation to evidence and legal
authority, that service of process on the business entity was proper. Alternatively,
by this same deadline, Plaintiff may file a properly supported motion requesting
additional time to serve AOE.
DONE and ORDERED in Orlando, Florida on December 23, 2024.
LESLIE 3 AN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties
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