Kennedy v. Tamiami Hotel LLC

Filing 16

ORDER granting 15 Defendant's Unopposed Motion to Set Aside Clerk's Default. Clerk's Entry of Default (Doc. 11) entered on August 8, 2017 is hereby VACATED and SET ASIDE. Signed by Magistrate Judge Carol Mirando on 8/14/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA KENNEDY, individually
Plaintiff,
v.

Case No: 2:17-cv-358-FtM-38CM

TAMIAMI HOTEL LLC,
Defendant.
ORDER
This matter comes before the Court upon review of the Defendant’s Unopposed
Motion to Set Aside Clerk’s Default (Doc. 15) filed on August 11, 2017. On August
6, 2017, Plaintiff filed a Motion for Entry of Clerk’s Default, seeking entry of Clerk’s
default against Defendant, Tamiami Hotel LLC. Doc. 9. On August 7, 2017, the
Court granted the motion and directed the Clerk to enter a default against Defendant.
Doc. 10. Accordingly, the Clerk entered a default against Defendant on August 8,
2017. Doc. 11. Defendant moves to set aside the Clerk’s default, explaining that
Defendant’s Registered Agent forwarded the Summons and Complaint to Defendant’s
designated representative in Chile, whose English is not his native language and who
did not understand the significance of the Complaint and Summons when it was
received. Doc. 15 at 1. It was not until August 9, 2017, when Defendant received
the Clerk’s Entry of Default, that Defendant understood the situation and retained
counsel immediately. Id. Plaintiff’s counsel consents to setting aside the Clerk’s
default. Id. at 2.

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).

Nevertheless, “the standard must be construed to have

substance.” Perez, 774 F. 3d at 1337 n.7. Courts generally evaluate various factors,
such as: “whether the default was culpable or willful, whether setting it aside would
prejudice the adversary, and whether the defaulting party presents a meritorious
defense.”

Compania Interamericana Exp.-Imp., S.A., 88 F.3d at 951 (citation

omitted); see also Perez, 774 F. 3d at 1337 n.7. If circumstances warrant, courts also
examine other factors, “including whether the public interest was implicated,
whether there was significant financial loss to the defaulting party, and whether the
defaulting party acted promptly to correct the default.” Compania Interamericana

Exp.-Imp., S.A., 88 F.3d at 951 (citation omitted). The Eleventh Circuit “strive[s] to
afford a litigant his or her day in court, if possible,” and has expressed a “strong
preference that cases be heard on the merits.” Perez, 774 F. 3d at 1342; see also

Florida Physician's Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993) (“We note that
defaults are seen with disfavor because of the strong policy of determining cases on
their merits.”) (citing Gulf Coast Fans, Inc. v. Midwest Elecs. Importers, Inc., 740
F.2d 1499, 1510 (11th Cir. 1984)).

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Here, based on Defendant’s representations and opposing counsel’s consent,
the Court finds that good cause exists to set aside the Clerk’s Entry of Default. Doc.
11. Defendant’s default was not willful and Defendant acted promptly to set aside
the Clerk’s Default.

Defendant has meritorious defenses and already filed its

Answer and Affirmative Defenses. Doc. 14. Moreover, due to the short delay and
Plaintiff’s consent to the instant motion, Plaintiff will not be prejudiced by having the
Clerk’s Default set aside.
ACCORDINGLY, it is hereby
ORDERED:
1.

Defendant’s Unopposed Motion to Set Aside Clerk’s Default (Doc. 15) is

GRANTED.
2.

Clerk’s Entry of Default (Doc. 11) entered on August 8, 2017 is hereby

VACATED and SET ASIDE.
DONE and ORDERED in Fort Myers, Florida on this 14th day of August, 2017.

Copies:
Counsel of record

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