Pedro-Mejia et al v. Franco Plastering Inc. et al
ORDER denying as moot 12 Plaintiffs' Motion for Clerk's Default; granting 20 Unopposed Motion of Defendants Franco Plastering, Inc. and Martin Franco for Extension of Time to Respond to the Complaint. Defendants Franco Plastering, Inc. and Martin Franco shall have up to and including Friday, October 13, 2017 to respond to Plaintiff's Complaint. Signed by Magistrate Judge Carol Mirando on 10/11/2017. (KBR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BASILIO PEDRO-MEJIA and
Case No: 2:17-cv-452-FtM-99CM
FRANCO PLASTERING INC. and
This matter comes before the Court upon review of Plaintiffs' Motion for Clerk's
Default (Doc. 12) filed on September 20, 2017 and the Unopposed Motion of
Defendants Franco Plastering, Inc. and Martin Franco for Extension of Time to
Respond to the Complaint (Doc. 20) filed on October 9, 2017.
pursuant to Federal Rule of Civil Procedure 55(a), for entry of Clerk’s default against
Defendants, Franco Plastering, Inc. and Martin Franco, but subsequently consented
to an extension of time for Defendants to respond to the Complaint. For the reasons
that follow, Plaintiffs’ Motion for Clerk’s Default (Doc. 12) is due to be DENIED as
moot, and the Unopposed Motion of Defendants Franco Plastering, Inc. and Martin
Franco for Extension of Time to Respond to the Complaint (Doc. 20) is due to be
Pursuant to Rule 55(a), the Federal Rules of Civil Procedure, “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.” Similarly, Rule 1.07(b) of the Local Rules for the Middle
District of Florida 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., 2011 WL
4501385, *1 (M.D. Fla. 2011) (citing Kilpatrick v. Town of Davie, 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.
The court also considers whether there is a meritorious defense to Plaintiff's claims,
and a “mere ‘hint of a suggestion’ that there is a meritorious defense to the claims
alleged is sufficient.” Id. (internal citation omitted).
Here, when Defendants did not timely file a response, Plaintiffs submitted a
Motion for Clerk’s Default on September 20, 2017. Doc. 12. Thereafter, Martin
Franco, individually and as President/registered agent for Franco Plastering, Inc.,
served an answer on Plaintiff on September 27, 2017. Doc. 16. According to Rule
2.03(e) of the Local Rules for the Middle District of Florida, however, a corporation
may only appear and be heard through counsel admitted to practice in this Court.
See M.D. Fla. R. 2.01, 2.02, 2.03(e).
“A corporation can never appear pro se.”
Obermaier v. Driscoll, No. 2:00-cv-214-FtM-29D, 2000 WL 33175446, at *1 (M.D. Fla.
Dec. 13, 2000). Subsequently, on October 9, 2017 Defendants Martin Franco and
Franco Plastering, Inc. retained counsel and filed a motion requesting additional time
to respond to Plaintiff’s complaint, which Plaintiff does not oppose.
Upon review of the record, the Court finds that Defendants’ initial answer to
the Complaint, although deficient, is sufficient to show “a mere hint of a suggestion”
of a meritorious defense. See Bateh, 2011 WL 4501385 at *1 (internal quotations
omitted). Moreover, Plaintiff has agreed to Plaintiff’s extension (Doc. 20), and will
not be prejudiced by the minimal delay the extension causes. As such, default is not
appropriate here given the Court’s policy in favor of adjudicating claims on the merits.
See Bateh, 2011 WL 4501385 at *1. Additionally, for good cause shown and because
the motion is unopposed, the Defendants’ motion for extension is due to be granted.
ACCORDINGLY, it is hereby
Plaintiffs’ Motion for Clerk’s Default (Doc. 12) is DENIED as moot.
The Unopposed Motion of Defendants Franco Plastering, Inc. and
Martin Franco for Extension of Time to Respond to the Complaint (Doc. 20) is
GRANTED. Defendants Franco Plastering, Inc. and Martin Franco shall have up to
and including Friday, October 13, 2017 to respond to Plaintiff’s Complaint.
DONE and ORDERED in Fort Myers, Florida on this 11th day of October,
Counsel of record
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