UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION

 

WEIZMAN FL PROPERTIES, LLC, 

a Florida limited liability company, 

 Case No.: 1:22-cv-23362-KMW

Plaintiff, 

vs. 

Michael Maranda, an individual, 

Defendant. 

____________________________________/ 

MOTION TO QUASH SERVICE AND SET ASIDE CLERK’S DEFAULT 

Defendant, MICHAEL MARANDA, by and through undersigned 

counsel, pursuant to Federal Rules of Civil Procedure 55 (c) and 60 (b)(2), and 

Local Rule 7.1, files this motion to quash service upon Defendant and set aside

the Clerk’s default entered against him on February 13, 2023. In support, the 

Defendant states: 

FACTS 

1. The Affidavit of Service for the Service of Process states that the 

Amended Complaint was “AFFIXED TO PREMISES” on January 19, 

2023, at 122 Fairfield Avenue, Holbrook, NY 11741 (the “Premises”) and 

by mailing a copy of the Amended Complaint to the same address on 

January 19, 2023.

Case 1:22-cv-23362-KMW Document 20 Entered on FLSD Docket 03/17/2023 Page 1 of 8
2. New York Civil Practice Law and Rule 308(4) “Nail and Mail” for personal 

service on a natural person requires (1) affixing the papers to the door of 

either the actual place of business, dwelling place or usual place of 

abode within the state of the person to be served, and (2) either mailing 

the papers to the person to be served at his or her last known 

residence or by mailing them by first class mail to the person’s actual 

place of business. (emphasis supplied) 

3. Included in the narrative of the listed Service Attempts, the Suffolk 

County Sheriff’s Office Process Server affiant notes: 

“12/22/22 1524 hrs Def Michael Maranda called SCSO civil 

bureau and stated that he received message and that his 

atty told him he does not have to accept service and that he 

has no intention of doing so and that he moved out of 

state.” [D.E. 14] (emphasis supplied). 

4. The Suffolk County Sheriff’s Office process server had actual knowledge 

that this residence was not the dwelling place or the usual place of abode 

of the Defendant. 

5. In spite of the knowledge that the Defendant did not reside at this 

address, the process server affixed the summons to the premises and 

mailed a copy to the Premises. 

6. According to the notes on the summons itself, Mr. Maranda advised the 

Suffolk County Sheriff’s Office Civil Division that he did not live at that 

Case 1:22-cv-23362-KMW Document 20 Entered on FLSD Docket 03/17/2023 Page 2 of 8
address, he had moved out of state and rented the premises to another 

person. 

7. The Process Server noted in the Affidavit of Service he observed packages 

addressed to Mr. Maranda, presumably as evidence that Mr. Maranda 

lived there. These packages contained household items ordered by Mr. 

Maranda and delivered to the residence for the use of the tenant renting 

the furnished residence. 

8. The Clerk entered a default against the Defendant on February 13, 2023 

[D.E. 16]. 

9. Defendant has several meritorious defenses to Plaintiff’s claims and 

allowing the Default to stand would result in substantial injustice. 

10. Defendant never intentionally ignored the matter and believed he had 

not been served. 

11. Prior to the Complaint and the Amended Complaint being filed, the 

Defendant had been in negotiations with counsel for the Plaintiff. 

12. The Defendant never intentionally misled the Plaintiff regarding the 

existence of any liens against the property and was operating under a 

mistaken belief that his cancelation of the first contract was effective. 

13. After the Defendant learned of the lien and the pending case for specific 

performance, he advised the Plaintiff that he would be forced to sell the 

property at a loss under the first contract. 

Case 1:22-cv-23362-KMW Document 20 Entered on FLSD Docket 03/17/2023 Page 3 of 8
14. Upon learning of the Clerk’s default against him, the Defendant 

exercised due diligence and promptly began searching for counsel to 

represent him.

15. Setting aside the Clerk’s default will not prejudice the Plaintiff. 

Memorandum of Law 

16. After the entry of a Clerk’s Default, the defaulting Defendant may move 

the Court to set aside the default within a reasonable time pursuant to 

Federal Rule of Civil Procedure 55 (c) and Florida Rules of Civil 

Procedure 1.540(b). Additionally, Fed. R. Civ. P 55(c) provides that the 

“[t]he court may set aside an entry of default for good cause.” 

17. Service of Process within a judicial district of the United States is 

governed by Rule 4(e) of the Federal Rules of Civil Procedure which allow 

service by “following state law for serving a summons in an action 

brought in courts of general jurisdiction in the state where the district 

court is located or where service is made.” In this case, the state is New 

York, where the statute (CPLR §308) provides personal service shall be 

made by personal delivery, substituted service, serving an agent, or Nail 

and Mail. For Nail and Mail to be effective, the papers may be served by 

affixing them to the actual place of business, dwelling place or usual 

place of abode. (emphasis supplied) Personal service upon a natural 

person (CPLR §308) In this case, the Suffolk County Sheriff’s Office 

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Process Server knew that Mr. Maranda did not live at this address and 

had moved out of the state. It constitutes bad service to Nail and Mail to 

an address which is known not to be the Defendant’s dwelling place or 

usual place of abode. 

18. The purpose of Service of Process is to obtain personal jurisdiction over 

the defendant and without proper service, the Court lacks jurisdiction 

over the Defendant. Rismed Oncology Sys., Inc. v. Baron, 638 F. App'x 

800, 805–06 (11th Cir. 2015). “Since statutes governing service of process 

are to be strictly construed, § 48.062 must be strictly construed and 

complied with to validly serve process.” (internal quotation marks 

omitted); Pierre v. Little New Orleans 1 Kitchen & Oyster Bar, L.L.C., 

No. 615CV709ORL40DAB, 2016 WL 721925, at *2 (M.D. Fla. Feb. 24, 

2016) (stating that Florida law clearly demands strict compliance with 

the procedures in § 48.062). 

19. Florida public policy encourages trial courts to exercise discretion so 

that all reasonable issues are resolved in favor of the party against whom 

the default has been entered. Gibson Trust, Inc. v. Office of the Atty. Gen., 

883 So.2d 379, 382 (Fla. 4th DCA 2004). This well-established policy 

favors determinations of controversies on the merits of the case rather 

than on a procedural or technical basis. Edwards v. Najjar, 748 So. 2d 

1101, 1103 (Fla. 3d DCA 2000). 

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20. The entry of a default is not “designed to give a strategic advantage to 

the plaintiff so that it may obtain a judgment without dealing with the 

defendant’s challenges and defenses.” Makes & Models Magazine, Inc. v. 

Web Offset Printing, Co., 13 So. 3d 178, 181 (Fla. 2d DCA 2009), citing 

Ole, Inc. v. Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990). The Clerk’s default 

may properly be set aside upon showing the Defendant’s meritorious 

defense, establishment of excusable neglect or demonstrated due 

diligence. North Shore Hospital, Inc v. Barber, 143 So. 2d 849 (Fla. 

1962).; Moreno Construction, Inc. v. Clancy & Theys Construction Co., 

722 So. 2d 976 (Fla. 5th DCA 1999). Furthermore, Florida Courts have 

recognized that a general denial is usually enough to establish a 

meritorious defense for the limited purpose of setting aside a Clerk’s 

Default. Quest Diagnostics, Inc. v. Haynie, 320 So. 3d 171, 175 (Fla. 4th 

DCA 2021). 

21. The Second DCA held “[A] judgment that is entered against a defendant 

when the court has no personal jurisdiction over the defendant is 

generally regarded as a void judgment.”); Great Am. Ins. Co. v. Bevis, 652 

So.2d 382, 383 (Fla. 2d DCA 1995). 

Application 

22. The Defendant was not properly served on January 19, 2023, as 

required by Federal Rule of Civil Procedure 49(e)(2), New York Civil 

Case 1:22-cv-23362-KMW Document 20 Entered on FLSD Docket 03/17/2023 Page 6 of 8
Practice Law and Rules, and the Florida Rules of Civil Procedure in that 

the residence where the Summons and Amended Complaint were affixed 

and mailed to was not the Defendant’s dwelling place or usual place of 

abode. The SCSO Process Server knew this was not the dwelling place 

or usual place of abode for Mr. Maranda. 

23. The Clerk’s Default is void as a matter of law due to the lack of proper 

service on the Defendant and the Plaintiff failed to establish personal 

jurisdiction over the Defendant. 

24. The Defendant has established good cause for quashing the service and 

setting aside the default and has acted promptly to cure the default and 

intends to litigate this case. 

WHEREFORE, Defendant, Michael Maranda, respectfully requests that 

this Honorable Court enter an order quashing the service of process and setting 

aside the Clerk’s Default. 

Dated: March 17, 2023 

Respectfully submitted, 

 ____________________________ 

 HAGOOD & HAGOOD, PLLC 

Hunter A. Hagood-James, Esq. 

Florida Bar No. 1020504 

501 N Magnolia Avenue 

Orlando, Florida 32801 

Telephone: (407) 414-3846 

Case 1:22-cv-23362-KMW Document 20 Entered on FLSD Docket 03/17/2023 Page 7 of 8
Primary Service Email Address: 

EService@HagoodHagood.com

 Counsel for the Defendant 

Certificate of Service 

 I hereby certify that a true and correct copy of the foregoing was 

served by e-service electronic filing on March 17, 2023, on counsel or 

parties of record on the Service List below. 

 

 _____________________________ 

Signature of Filer 

 

 

SERVICE LIST

 

Steven M. Appelbaum 

steven.appelbaum@saul.com

SAUL EWING LLP 

701 Brickell Avenue, Suite 1700 

Miami, Florida 33131 

Telephone: (305) 428-4500

Facsimile: (305) 374-4744 

Attorneys for Plaintiff 

Case 1:22-cv-23362-KMW Document 20 Entered on FLSD Docket 03/17/2023 Page 8 of 8