Real v. The City of Fort Myers et al

Filing 47

ORDER denying 44 Plaintiff's Motion for Entry of Default as to Defendant City of Fort Myers. Signed by Magistrate Judge Carol Mirando on 5/3/2018. (DRS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MAMBERTO REAL,
Plaintiff,
v.

Case No: 2:17-cv-117-FtM-38CM

THE CITY OF FORT MYERS,
MICHEL PERRY and MICHAEL
PERRY,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion for Entry
of Default filed on April 30, 2018. Doc. 44. Although the motion requests an entry
of default against Defendant City of Fort Myers (“the City”) pursuant to Federal Rule
of Civil Procedure 55(b), the Court construes Plaintiff’s request as one under Rule
55(a).1 See id. For the reasons stated below, as similarly explained in the Court’s
Order denying Plaintiff’s nearly identical motion about Defendant Michael Perry, the
Court will deny the motion. See Docs. 40, 43.
Under Federal Rule of Civil Procedure Rule 55(a), “[w]hen a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise

To the extent Plaintiff intended to seek a default judgment under Rule 55(b), such
a request would be premature. See Berenato v. Tankel, No. 3:10-cv-979-J-32MCR, 2011 WL
17618, at *1 (M.D. Fla. Jan. 4, 2011) (“[P]ursuant to Rule 55(b), a party cannot obtain a
default judgment until the Clerk has entered default.”).
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defend, and that failure is shown by affidavit or otherwise, the clerk must enter the
party’s default.” Similarly, Middle District of Florida Local Rule 1.07(b) provides:
When service of process has been effected but no appearance or response
is made within the time and manner provided by Rule 12, Fed. R. Civ.
P., the party effecting service shall promptly apply to the Clerk for entry
of default pursuant to Rule 55(a), Fed. R. Civ. P.
M.D. Fla. R. 1.07(b). “Courts have a longstanding policy favoring adjudication
of lawsuits on the merits, thus defaults are disfavored.”

Bateh v. Colquett D.

Trucking, Inc., No. 3:11-cv-926-J-32MCR, 2011 WL 4501385, at *1 (M.D. Fla. 2011)
(citing Kilpatrick v. Town of Davie, No. 08-60775-CIV, 2008 WL 3851588 (S.D. Fla.
2008)). Simply because a defendant fails to timely respond to a complaint, it does
not show an intentional or reckless disregard for judicial proceedings. Id.
Here, Plaintiff claims the City is in default because it failed to appear, plead
or otherwise defend by its April 25, 2018 deadline to respond to the Second Amended
Complaint.

Doc. 44-1 ¶¶ 4-5. However, the City has been actively litigating this

case and timely filed a responsive pleading—a motion to dismiss Plaintiff’s Second
Amended Complaint—on the April 25, 2018 deadline. See Docs. 36, 38. The City
also filed an amended motion to dismiss the following day, however, which appears
to be the subject of Plaintiff’s motion. See Doc. 39; see also Doc. 44-1 ¶ 5. Although
the amended motion to dismiss was filed a day after the deadline, the Court will
accept it in the interests of adjudicating this case on the merits. The Court cautions,
however, that any future documents untimely filed without leave of Court may not
be accepted.

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ACCORDINGLY, it is
ORDERED:
Plaintiff’s Motion for Entry of Default (Doc. 44) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 3rd day of May, 2018.

Copies:
Counsel of record
Pro se parties

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