IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

GEICO INDEMNITY

COMPANY,

Plaintiff,

vs. CASE NO. 3:10cv163/RS-EMT

JOE DAN NELSON, JR,

TIM WARD, SARAH WARD,

and MARY FRENCH

Defendants.

_________________________________/

ORDER

Before me is Defendant Joe Dan Nelson, Jr.’s motion to quash service of 

process and set aside the default against him (Doc. 26).

Background

Plaintiff’s proof of service of Defendant Nelson indicates that substitute 

service was made by leaving a copy of the summons at 289 Sherwood Road with 

Sarah Ward on May 24, 2010. (Doc. 5). Nelson did not file a response to the 

complaint and on July 2, 2010, Plaintiff moved for an entry of a clerk’s default as 

to Defendant Nelson. (Doc. 9). On July 7, 2010, the clerk entered a default against 

Defendant Nelson for failure to file any responsive pleadings. (Doc. 10). On 

December 9, 2010, Nelson made an appearance in the case for the first time. (Doc. 

19). Nelson requests that I quash the service of process and set aside the default 
against him, arguing that service was improper because 289 Sherwood Road was 

not his residence. (Doc. 26). 

Analysis

The fundamental purpose of service is to give proper notice to the defendant 

in the case that he is answerable to the claim of the plaintiff, and to vest 

jurisdiction in the court entertaining the controversy. Shurman v. Atlantic Mortg. 

& Inv. Corp., 795 So.2d 952 (Fla. 2001). Pursuant to Fed. R. Civ. P. 4(e), an 

individual may be served by following the state law for serving a summons in the 

state where the district court is located or where service is made, or by delivering a 

copy of the summons and complaint to the individual personally, leaving the 

summons at the individual’s dwelling or usual place of abode, or delivering a copy 

to an agent authorized by appointment or by law to receive service of process. 

Under Florida law, a return that is regular on its face is presumed valid 

unless clear and convincing evidence is presented to the contrary. TS Production, 

LLC, v. Leadracer.com, Inc., 2007 WL 4277535 *2 (citing Lazo v. Bill Swad 

Leading Co., 458 So.2d 1194, 1195 (Fla. 4th DCA 1989)). Although the return in 

this case appears regular on its face, Defendant Nelson has presented clear 

evidence he was not residing at 289 Sherwood Road at the time the summons was 
left there, and had not been living at that address for some time.1

 Instead, since

2008 Defendant resided with his girlfriend at another address. The evidence 

presented by Defendant makes clear that 289 Sherwood Road was not his 

residence or “usual place of abode,” and therefore service of the summons and 

complaint at that location was not proper service. See Fed. R. Civ. P. 4(e), Fla. 

Stat. § 48.031(1)(a). Accordingly, the service of process on Defendant Nelson is 

quashed.

Because service was not properly accomplished, the default against 

Defendant was not proper either, and pursuant to Fed. R. Civ. P. 55(c), the default

against Defendant Nelson is vacated.

IT IS ORDERED:

1. The service of process on Defendant Nelson is quashed.

2. Plaintiff shall accomplish proper service on Defendant Nelson not 

later than January 13, 2011.

3. The Clerk’s default (Doc. 10) against Defendant Nelson is vacated. 

ORDERED on January 6, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

 

1 A district court may resolve factual issues in this type of situation through affidavits alone; no hearing is necessary. 

U.S.S.E.C. v. Reinhard, 352 Fed. Appx. 309, 313 (11th Cir. 2009).