The Middle District of Florida recently heard a motion by a defendant who claimed that service was improper and should be quashed because he didn’t live at the address listed on the return of service.
He claimed he wasn’t properly substitute served because service wasn’t effected at his “usual place of abode.”
What is “Usual Place of Abode”?
The Defendant was substitute-served at his parents’ house. However, he said he didn’t live and had never lived at that address.
The Plaintiff filed a Motion for Entry of Default requesting the entry of a Clerk’s Default against Defendant. The Court granted the motion and directed the Clerk to enter a Clerk’s Default against Defendant. The return of service stated that the process server substitute served the Defendant by serving a copy of the complaint and summons to his father at Defendant’s usual place of abode in Lake Placid, Florida.
The return of service stated that the Defendant and his father were “co-residents” at the listed address, and the listed address was Defendant’s “usual place of abode[.]”. The Plaintiff contended that service was proper under both Rule 4 of the Federal Rules of Civil Procedure and Florida law based on the return of service.
The Defendant filed his motion, arguing that service was not proper and should be quashed because he didn’t live at the address listed on the return of service. As a result, he was not properly substitute served.
The Defendant said that the process server may have been mistaken or the Defendant’s father may have been confused by the process server’s questions at the time of service. The process server said that Defendant’s father replied in the affirmative when asked if the Defendant lived with him. But there was room for confusion since the Defendant and his father have the same first name.
Further, Defendant argued the Clerk’s Default should be set aside as he provided good cause due to the fact he wasn’t properly served.
Who Must Prove Substitute Service is Valid?
United States Magistrate Judge Douglas N. Frazier explained in his opinion that “when service of process is challenged, the party on whose behalf service is made has the burden of establishing its validity.” Courts in Florida, the judge said, have held that state laws governing service of process are to be strictly construed to be certain that a defendant receives notice of the proceedings.
Also, the judge noted that Rule 55(c) of the Federal Rules of Civil Procedure provides that the Court “may set aside an entry of default for good cause.”
The documents attached to the Defendant’s declaration—his 2017 driver’s license and a current cable TV bill—supported his claim that Lake Clay Drive was his usual place of abode. His declaration and supporting documents provided strong and convincing evidence of the facts, Judge Frazier said, and the Plaintiff couldn’t meet its burden of proving otherwise.
The Plaintiff didn’t attempt to establish the validity of process in response to Defendant’s challenge and didn’t oppose the request to quash service.
In light of this and with the confusion as to whether Defendant lived at the address listed on the return of service—and the issue of whether substitute service was proper—Judge Frazier found that service should be quashed. The judge set aside the Clerk’s Default for good cause shown.
Defendant’s motion also noted that the parties’ counsel agreed that Defendant would accept service of the complaint.
Defendants Motion to Quash Service and Vacate Clerk’s Default was granted. Ifill v. United States Sugar Corp., 2019 U.S. Dist. LEXIS 19055 (M.D. Fla. February 6, 2019).
What Does the Statute Say?
As mentioned above, Florida statutes governing substituted service of process must be strictly construed and litigants must strictly comply with them. Service of process must be made at the party’s usual place of abode.
Courts have said that the term “usual place of abode” means the place where the person is actually living at the time of service. Also, substitute service must be left on with any person at defendant’s abode who is at least 15 years old.
In addition, a defendant’s actual knowledge of the attempted service cannot be used to justify the plaintiff’s failure to strictly observe and substantially comply with service requirements.