Coello v. La Cabana Mexican Restaurant et al
MEMORANDUM OPINION AND ORDER DENYING 19 MOTION to Set Aside Default as set out herein. Signed by Judge Virginia Emerson Hopkins on 1/2/2013. (JLC)
2013 Jan-03 AM 09:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JUAN RAMON COELLO,
) Case No.: 4:12-CV-1104-VEH
LA CABANA MEXICAN
RESTAURANT, ANDRES LUNA, in )
his individual capacity, and d/b/a La )
Cabana Mexican Restaurant, and
JOSE C. LUNA, in his individual
capacity, and d/b/a Cabana Mexican )
MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion To Set Aside Judgment by
Defendants (Doc. 19). Plaintiff responded to this motion on September 19, 2012.
(Doc. 21). This matter is ripe for review. For the reasons stated herein, the motion
is due to be DENIED.
Factual Background and Procedural History
Plaintiff Juan-Ramón Coello commenced this lawsuit on April 12, 2012,1
bringing claims against his former employer under the Fair Labor Standards Act of
Although filed on April 12, 2012, the Clerk of Court entered the complaint on April 13,
1938 (“FLSA”), 29 U.S.C. § 201 et seq, and under § 25-5-11.1 of the Code of
Alabama 1975. (Doc. 1).
According to the filed return, service was perfected on Defendant La Cabaña
Mexican Restaurant on June 12, 2012. (Doc. 6). Service was similarly perfected on
Defendants Andrés Luna and José C. Luna on that same day. Id. As the summons
indicated, Defendants were due to file their answer by July 3, 2012. Id. On July 30,
2012, Plaintiff filed a motion for entry of default. (Doc. 7). On July 31, 2012, the
clerk entered a default against Defendants due to their failure to respond to Plaintiff’s
complaint despite the foregoing proof of perfection of service. (Doc. 8). Defendants
acknowledged service of the clerk’s default entry on August 2. (Doc. 9). On August
7, 2012, Plaintiff filed a motion for default judgment due to Defendants’ failure to
appear. (Doc. 10). On August 17, 2012, the court filed an order granting Plaintiff’s
motion, awarding damages to Plaintiff under Federal Rule of Civil Procedure 55(b)
as to Plaintiff’s FLSA claim and dismissing the case. (Doc. 11).2 Defendants
acknowledged service of this order on August 21, 2012. (Doc. 12).
Defendants filed the instant motion on September 16, 2012. (Doc. 19). In this
document, they move to set aside the default judgment order issued on August 17,
2012, under Rules 55(c) and 60(b) of the Federal Rules of Civil Procedure. Id. Their
The Order did not reference Plaintiff’s state law claim.
grounds for doing so are, inter alia, that: (1) they have a meritorious defense; (2)
Plaintiff will not be unfairly prejudiced if the default judgment is set aside; and (3)
the default judgment was not a result of Defendants’ own culpable conduct. Id.
Plaintiff, pursuant to an order issued by the court (Doc. 20), responded on September
19, 2012. (Doc. 21). In its response, Plaintiff opposes the motion. Id. He asserts,
inter alia, that (1) Defendants have failed to show the “good reason” required by Rule
60(b) for their failure to respond to Plaintiff’s complaint; (2) they have no meritorious
defense against the claims made against them; and (3) they are collaterally estopped
from raising certain issues that they attempted to bring to the court’s attention in the
“The court may set aside an entry of default for good cause, and it may set
aside a default judgment under Rule 60(b).” FED. R. CIV. P. 55(c). Under Rule 60(b),
a court may provide relief from a final judgment on the following grounds: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence
which could not have been discovered earlier with reasonable diligence; (3) fraud,
misrepresentation, or other misconduct of an opposing party; (4) a void judgment; (5)
a judgment that has been satisfied, released, discharged, reversed, or vacated; or (6)
any other reason justifying relief from the operation of the judgment. FED. R. CIV. P.
The standard that courts apply in setting aside a default judgment under
Rule 60(b)(1) is more rigorous than the “good cause” standard courts use in setting
aside a mere entry of default. E.E.O.C. v. Mike Smith Pontiac GMC, Inc., 896
F.2d 524, 528 (11th Cir. 1990) (citations omitted). To establish “mistake,
inadvertence, surprise, or excusable neglect” under Rule 60 (b)(1), a defendant
must show (1) a meritorious defense that might have affected the outcome of the
case; (2) lack of prejudice to the non-defaulting party if the judgment were
vacated; and (3) a good reason for failing to reply to the complaint. In re
Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003) (citing Fla.
Physician’s Ins. Co., Inc., v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993)).3
The Supreme Court, in analyzing the concept of “excusable neglect” in the context of the
Federal Rules of Bankruptcy Procedure, emphasized that the judicial determination must be “at
bottom an equitable one, taking account of all relevant circumstances” surrounding the moving
party’s failure to meet the imposed deadline. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd.
P’ship, 507 U.S. 380, 395 (1993). It enumerated the following “relevant circumstances”: the
danger of prejudice to the non-moving party, the length of the delay and its potential impact on
judicial proceedings, the reason for the delay – including whether it was within the reasonable
control of the movant – and whether the movant acted in good faith. Id. Nevertheless, the
tripartite framework listed above is still the prevailing approach used to analyze Rule 60(b)(1)
motions within the Eleventh Circuit. See Worldwide Web Sys., 328 F.3d at 1297 (“Pioneer . . .
do[es] not alter the fact that a determination of excusable neglect . . . necessarily involves
consideration of all three elements - a meritorious defense, predudice, and a good reason for not
responding to the complaint . . .”); accord S.E.C. v. Simmons, 241 F. App’x 660, 663 (11th Cir.
2007) (unpublished); but cf. United States v. Weiss, No. 696-cr-99-Orl-19KRS, 2010 WL
750348, at *4 (M.D. Fla. Mar. 4, 2010) (stating in dicta that any case not applying the “flexible,
multi-factored, totality-of-the-circumstances standard” enunciated in Pioneer is no longer
controlling precedent) and In re Atl. Int’l Mortgage Holding Inc., 345 B.R. 392, 395 (M.D. Fla.
2005) (stating that Pioneer removes any requirement that a party seeking relief from a default
With this standard in mind, the Eleventh Circuit has nevertheless made it
clear that “there is a strong policy of determining cases on their merits and [it]
therefore view[s] defaults with disfavor.” Id. (citations omitted). The entry of
judgment by default “is a drastic remedy and should be resorted to only in extreme
situations. It is only appropriate where there has been a clear record of delay or
contumacious conduct.” E.F. Hutton & Co., Inc., v. Moffatt, 460 F.2d 284, 285
(5th Cir.1972) (citations omitted). An order denying relief under Rule 60(b) will
be reviewed on appeal for abuse of discretion. United States v. Davenport, 668
F.3d 1316, 1324 (11th Cir. 2012) (citation omitted).
A. Defendants lack a meritorious defense.
In order to prove excusable neglect under Rule 60(b)(1), a party must first
show that it had a meritorious defense that might have affected the outcome of the
case. Ehlers, 8 F.3d at 783 (citing Mike Smith Pontiac GMC, 896 F.2d at 528).
Defendants state that they can demonstrate “several plausible defenses” to
Plaintiff’s claims. (Doc. 19, ¶ 12).4 However, they do not elaborate on this
judgment under Federal Rule of Bankruptcy Procedure 7008(b) must describe a meritorious
Here, as throughout their motion, Defendants cite Alabama state law to support their
arguments. Although the court does not use this fact to deny Defendants’ motion, their total
failure to reference controlling federal law was problematic in evaluating their contentions.
assertion in any depth in their motion; it is merely a conclosury allegation. It thus
might serve as a general denial of Plaintiff’s claims, but a moving party cannot
satisfy the burden of showing a meritorious defense simply by asserting a general
denial. Solaroll Shade and Shutter Corp., Inc., v. Bio-Energy Sys., Inc., 803 F.2d
1130, 1133 (11th Cir. 1986); In re Tires and Terms of Columbus, Inc., 262 B.R.
885, 889 (Bankr. M.D. Ga. 2000) (“General denials and conclusive statements are
insufficient; the movant must present a factual basis for his claim.”). Rather, a
defaulting party in Defendants’ position “must make an affirmative showing of a
defense that is likely to be successful.” Solaroll, 803 F.2d at 1133 (citing United
States v. One 1978 Piper Navajo PA-31, Aircraft, 748 F.2d 316, 319 (5th Cir.
Defendants here offer no specifics that could quality as such an affirmative
showing. In the absence of any such specifics, the court will not speculate on the
defenses that Defendants could have raised – or that could be inferred from the
assertions in their motion – in an effort to discover any that might have affected
the outcome of this case. Cf. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
587, 599 (11th Cir. 1995) (“There is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment.”) (citation omitted). As such, the court finds that Defendants
have not met their burden to show that they have a meritorious defense to
Plaintiff’s claims which might have affected the outcome of this case.
B. Defendants fail to show Plaintiff will not be prejudiced by vacating
the default judgment.
A defaulting party that has described a meritorious defense under Rule
60(b)(1) must then show that granting the motion in its favor would not result in
prejudice to the non-defaulting party. See Worldwide Web Sys., 328 F.3d at 1297
(examining the “prejudice prong” of a Rule 60(b)(1) motion). Defendants argue
that setting aside the judgment here would not cause any “unfair prejudice” to
Plaintiff. (Doc. 19, ¶ 13). While Plaintiff would certainly experience delay in
recovering his judgment, Defendants contend that this delay would not be
The Eleventh Circuit has not articulated a concrete definition of “prejudice”
as it pertains to Rule 60(b)(1) motions. Certainly, the claimed prejudice must
consist of more than just those incidents that arise anytime a court vacates a
judgment. See Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.1984) (finding that
movant suffered no unfair prejudice under Rule 60(b) where he merely alleged the
prospect of protracted proceedings, time and expense of trial, and loss of judgment
interest). On the other extreme, prejudice clearly arises when the delay produced
by vacating the default judgment will result in loss of evidence, increased
difficulties in discovery, or greater opportunities for fraud or collusion. See
GuideOne Mut. Ins. Co. v. Iglesia Bautista Resurreccion, No. 11-20497-CIV,
2011 WL 3584212, at *3 (S.D. Fla. Aug. 12, 2011) (quoting Berthelsen v. Kane,
907 F.2d 617, 621 (6th Cir. 1990)). Defendants suggest that these consequences
are the only ones the court should consider in evaluating whether Plaintiff will be
prejudiced by granting this motion (Doc. 19, ¶ 13); however, there is no
controlling authority for this proposition. Indeed, some courts in this circuit have
found that prejudice results whenever there is no factual basis for a meritorious
defense. See, e.g., Tires and Terms of Columbus, 262 B.R. at 889 (holding that,
where defendant had not presented a meritorious defense, the threat of prejudice to
plaintiff was enhanced). The rationale in such cases is that “the delay in
vindicating the plaintiff's rights and the expense in prosecuting a case where the
defendant has defaulted and has no meritorious defense amount to undue prejudice
to the plaintiff.” Davis v. Oldham, No. 6:07-cv-941-Orl-31DAB, 2007 WL
4115292, at *6 (M.D. Fla. Nov. 16, 2007), report and recommendation adopted by
2008 WL 1743482 (M.D. Fla. Apr. 15, 2008).
The court need not determine whether the latter situation applies here; nor
need it specifically define “prejudice” in order to decide this motion. Even under
Defendants’ limited definition of the term, Plaintiff would clearly suffer
“prejudice” of the kind relevant under Rule 60(b). To wit, setting aside the default
judgment in this case would expose Plaintiff to possible “fraud or collusion” by
Defendants. The record reflects that the court issued a Writ of Garnishment as to
Defendants’ assets on September 12, 2012, after the entry of default judgment.
(Doc. 16). Indeed, this action appears to have attracted Defendants’ initial
attention to this case, as they filed the present motion (their first) soon afterward.
Granting Defendants’ motion would provide them with more time and opportunity
to abscond with the funds that they currently owe to Plaintiff because of the
default judgment. While the court does not comment on the probability of this
contingency, the risk that it might occur is sufficient to conclude that Plaintiff
would be unfairly prejudiced by vacation of the judgment.
C. No good reason exists to excuse Defendants’ failure to respond to
Finally, a party seeking to set aside a default judgment under Rule 60(b)(1)
must show that a good reason existed for its failing to reply to Plaintiff’s
complaint. See Worldwide Web Sys., 328 F.3d at 1297-98 (examining the “good
reason prong” of a Rule 60(b)(1) motion). Nowhere in their motion do Defendants
even attempt to supply such a reason. Instead, in speaking to the circumstances
surrounding the filing of Plaintiff’s complaint in this case, they largely focus on
the alleged conduct of the Plaintiff in a concurrent civil action in Alabama state
court supposedly initiated before the instant one. (Doc. 19, ¶¶ 2-8). Moreover,
they misstate the legal standard by which their actions should be judged here. (Id.,
¶ 14). The burden is not on Plaintiff to identify any “culpable” conduct by
Defendants that led to the default judgment; instead Defendants must adequately
explain their failure to reply to Plaintiff’s complaint within the required time
period. See Ehlers, 8 F.3d at 783-84 (establishing that defaulting party bears the
burden of supplying good reason for failing to reply to the complaint). They have
not done so in this motion.
Notably, Defendants do not challenge the judgement on the grounds of
insufficiency of service under Rule 60(b)(4). See Worldwide Web Sys., 328 F.3d
at 1298-99 (holding that a party may challenge a default judgment as void under
Rule 60(b)(4) on the trial level as a matter of personal jurisdiction but that the
objection is waivable). Although they insinuate that they were uninformed of the
filing of the instant action (see Doc. 19, ¶ 7), this possibility is belied by the
record. As noted above, a summons was delivered to Defendants via certified mail
on June 11, 2012, and service was perfected on them the next calendar day. (See
Docs. 5 and 6). Furthermore, Defendants were represented by counsel in the
allegedly identical state action prior to, and at all times after, Plaintiff filed his
complaint with this court. With all these facts in mind, the court finds that
Defendants have not provided good reason for their failure to respond to
Conclusion and Order
Based upon Defendants’ arguments in the present motion, the court finds
that they have failed to demonstrate that they are entitled to relief from the default
judgment under Federal Rule of Civil Procedure 60(b)(1). Accordingly,
Defendants’ motion is due to be and it is hereby DENIED.
DONE and ORDERED this 2nd day of January, 2013.
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