Haynes v. Perkins & Marie Callender's LLC

Filing 14

ORDER granting 12 Plaintiff's Motion to Vacate Clerk's Default. Clerk's Entry of Default (Doc. 11) entered on June 2, 2017 is hereby VACATED and SET ASIDE. Signed by Magistrate Judge Carol Mirando on 6/14/2017. (HJ)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DENNIS HAYNES, individually Plaintiff, v. Case No: 2:17-cv-223-FtM-99CM PERKINS & MARIE CALLENDER’S LLC, Defendant. ORDER This matter comes before the Court upon review of Plaintiff’s Motion to Vacate Clerk’s Default (Doc. 12) filed on June 13, 2017. On June 1, 2017, Plaintiff filed a Motion for Clerk’s Entry of Default, seeking entry of Clerk’s default against Defendant. Doc. 9. On June 2, 2017, the Court granted the motion and directed the Clerk to enter a default against Defendant. Doc. 10. entered a default against Defendant on June 2, 2017. Accordingly, the Clerk Doc. 11. Plaintiff seeks to set aside the Clerk’s Entry of Default (Doc. 11) because when he filed the motion for Clerk’s default, Plaintiff’s counsel was unaware that his co-counsel and Defendant’s counsel agreed on extending Defendant’s time to respond to the Complaint (Doc. 1). Doc. 12 at 1. On June 13, 2017, Plaintiff filed a Notice of Settlement that this lawsuit has been settled. Doc. 13. Pursuant to Rule 55(c) of the Federal Rules of Civil Procedure, the Court “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). Not susceptible to a precise definition or formula, the Eleventh Circuit has labeled “good cause” as a “liberal” and “mutable” standard, and one that varies from situation to situation. See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1337 n.7 (11th Cir. 2014); Compania Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996). Here, the Court finds that Plaintiff has shown good cause to set aside the Clerk’s Entry of Default. Doc. 12. Plaintiff’s counsel allege that he moved for entry of Clerk’s default based on his unawareness of ongoing discussions between his co-counsel and Defendant’s counsel, and the parties amicably have resolved this lawsuit. Docs. 12, 13. As a result, the Court will grant the present motion. ACCORDINGLY, it is hereby ORDERED: 1. Plaintiff’s Motion to Vacate Clerk’s Default (Doc. 12) is GRANTED. 2. Clerk’s Entry of Default (Doc. 11) entered on June 2, 2017 is hereby VACATED and SET ASIDE. DONE and ORDERED in Fort Myers, Florida on this 14th day of June, 2017. Copies: Counsel of record -2-

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