Abaunza v. Geo Group, Inc. et al

Filing 63

OPINION AND ORDER denying re: 54 MOTION for default judgment against Mike Carroll, Kristin Kanner. Signed by Judge Sheri Polster Chappell on 3/13/2019. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALVARO IGNACIO ABAUNZA,
Plaintiff,
v.

Case No: 2:17-cv-194-FtM-99MRM

GEO GROUP, INC., CORRECT
CARE RECOVERY SOLUTIONS,
GEORGE ZOLEY, KRISTIN
KANNER, MIKE CARROLL,
DONALD SAWYER, REBECCA
JACKSON and CHRIS CATRON,
Defendants.
/
OPINION AND ORDER1
Before the Court is Plaintiff’s Motion for Default Judgment against Mike Carroll,
Kristin Kanner filed November 29, 2018 (Doc. 54) and Defendants Kanner and Carroll's
Response in opposition to the same filed December 10, 2018 (Doc. 58). For the following
reasons, the Court denies the Motion.
Plaintiff seeks entry of default against Defendants Kanner and Carroll due to the
Defendants alleged failure to timely file an answer or otherwise respond to Plaintiff’s
Amended Complaint.

1

Doc. 54 at 2.

Plaintiff contends that on September 7, 2018

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Defendants acknowledged service of Plaintiff’s Amended Complaint but failed to file an
Answer or otherwise respond to the Amended Complaint within sixty (60) days. Id. The
docket reveals that on September 7, 2018, the U.S. Marshall returned Proof of Service of
summons and the Amended Complaint by certified mail upon Defendants Kanner and
Carroll on July 27, 2018. See Doc. 45 and Doc. 50. Defendants Kanner and Carroll did
not file their Motion to Dismiss Plaintiff’s Amended Complaint until December 10, 2018.
Doc. 57. Defendants oppose the Motion and point out that after counsel was retained he
contacted Defendants Kanner and Carroll, neither had “personal knowledge or an
assistant’s personal knowledge” of receiving service. Doc. 58 at ¶ 8.

Counsel promptly

filed notices of Waiver of Service of Summons on October 25, 2018. See Doc. 56 and
Doc. 57. Consequently, counsel calendared the responsive due date as December 23,
2018. Doc. 58 at 3.
This Court is vested with discretion to extend time limits or deadlines “on motion
made after the time has expired if the party failed to act because of excusable neglect.”
Fed. R. Civ. P. 6(b) (1) (B). The Court considers these four factors in determining whether
to grant such a motion: (1) the danger of prejudice to the opposing party; (2) the length of
delay and its potential impact on judicial proceedings; (3) the reason for the delay,
including whether it was within reasonable control of the movant; and (4) whether the
movant acted in good faith. Pioneer Investment Services Co. v. Brunswick Associates
Limited Partnership, 507 U.S. 380, 395 (1993); Glover v. City of Pensacola, 372 Fed.
Appx. 952, 955 (11th Cir. April 14, 2010). See also Fisher v. Office of State Attorney 13th
Judicial Circuit Fla., 162 F. App'x 937, 940 (11th Cir. Jan. 19, 2006) (applying the Pioneer
factors to determine whether Rule 6(b)'s excusable neglect standard was met).

2

The aforementioned factors weigh in favor of Defendants. Plaintiff has not pointed
to a single reason to strike Defendants’ Motion to Dismiss other than its untimeliness.
This case is in its initial stage. The Court has not yet entered a case management order.
The Court cannot discern any prejudice to Plaintiff in permitting Defendants an extension.
The Court is admittedly frustrated with the repeated efforts necessary to effectuate
service on behalf of pro se litigants. Nonetheless, the Court is cognizant that delays are
inevitable, especially when delivering documents to governmental entities.

The Court

finds this de minimis delay under the circumstances will have no potential effect on the
judicial proceedings.
Based on the above, the Court construes Defendants’ response (Doc. 58) as a
nunc pro tunc motion to extend time to file an answer and affirmative defenses. The Court
finds that Defendants have shown excusable neglect and that Plaintiff will suffer no
prejudice. Because Defendants have not failed to plead or defend this action, Plaintiff is
not entitled to a default judgment. Fed. R. Civ. P. 55(b) (2).
Accordingly, it is now
ORDERED:
Plaintiff’s Motion for Default (Doc. 54) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 13th day of March 2019.

SA: FTMP-1
Copies: All Parties of Record

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