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ROSS v. MILLER, 5:15-cv-391-Oc-32PRL. (2016)

Court: District Court, M.D. Florida Number: infdco20160106955 Visitors: 20
Filed: Jan. 05, 2016
Latest Update: Jan. 05, 2016
Summary: ORDER PHILIP R. LAMMENS , Magistrate Judge . This matter is before the Court on Plaintiffs' motion to compel (Doc. 14) and motion for entry of default. (Doc. 16). Plaintiffs claim that they never received a copy of Defendant Miller's motion to dismiss even though the certificate of service states that a copy was sent to Plaintiffs at their address on file in this case. In an abundance of caution, the Court will grant Plaintiffs' motion to the extent that on or before January 8, 2016, Defe
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ORDER

This matter is before the Court on Plaintiffs' motion to compel (Doc. 14) and motion for entry of default. (Doc. 16). Plaintiffs claim that they never received a copy of Defendant Miller's motion to dismiss even though the certificate of service states that a copy was sent to Plaintiffs at their address on file in this case. In an abundance of caution, the Court will grant Plaintiffs' motion to the extent that on or before January 8, 2016, Defendant shall serve another copy of the motion to dismiss on Plaintiffs. Plaintiffs' deadline to file a response to the motion to dismiss is extended until January 28, 2016.

Because the docket reflects that Defendant Miller timely filed a motion to dismiss (Doc. 13) in response to the Complaint, Plaintiffs' motion for entry of default is DENIED. See Fed.R.Civ.P. 55(a), ("[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default"). To the extent that Plaintiffs are seeking entry of default as to Defendant Turner, that request is likewise DENIED because no return of service has been filed with the Court. See Laing v. Cordi, III, No. 2:11cv-566-FtM-29SPC, 2012 WL 4828312 at *1 (M.D. Fla. Oct. 10, 2012) (before a clerk's default can be entered, the serving party must establish that the defaulting party was properly served).

DONE and ORDERED.

Source:  Leagle

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