National Union Fire Insurance Company of Pittsburgh, PA v. Classic Yacht Service, Inc. et al

Filing 41

ORDER granting 38 Defendant Dan B. House's Verified Motion to Set Aside Order Directing Entry of Default and vacating 37 Clerk's Entry of Default. Signed by Magistrate Judge Carol Mirando on 8/16/2018. (APH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NATIONAL UNION FIRE
INSURANCE COMPANY OF
PITTSBURGH, PA, as subrogee of
Kevin Adell and Adell Properties, LLC
Plaintiff,
v.

Case No: 2:18-cv-153-FtM-99CM

CLASSIC YACHT SERVICE, INC.,
DAN B. HOUSE and JUBILEE
SERVICES, LLC,
Defendants.
ORDER
This matter comes before the Court upon review of Defendant Dan B. House’s
(“House”) Verified Motion to Set Aside Order Directing Entry of Default filed on
August 10, 2018. Doc. 38. Plaintiff filed a response in opposition on August 14,
2018. Doc. 40. For the reasons stated below, the motion is granted.
Plaintiff filed its Second Amended Complaint on May 30, 2018 alleging
admiralty and maritime claims against Defendants for negligence, breach of
warranty and breach of contract.

Doc. 27.

Plaintiff filed its Motion to Enter a

Default Against Defendant, Dan B. House on July 25, 2018. Doc. 34. On August 8,
2018, the Court granted Plaintiff’s motion for entry of Clerk’s default and directed
the Clerk to enter a default against House. Doc. 36. The Clerk entered the default
on August 9, 2018. Doc. 37. House now moves to set aside the Clerk’s default,
explaining that upon service of the Summons and Complaint in June 2018, he

mistakenly believed counsel for Defendant Jubilee Services, LLC (“Jubilee”) would be
representing him in the case.

Doc. 38 at 1.

House states on August 1, 2018

Jubilee’s counsel advised House that he was not representing him, and House then
promptly retained counsel and filed the present motion. Id.
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

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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)).
Here, based on the representations of House and his counsel, the Court finds
good cause to set aside the Clerk’s Entry of Default (Doc. 37). House’s default was
not willful, and House acted promptly to set aside the Clerk’s Default once he became
aware that he was currently unrepresented and needed to act to preserve his rights.

See Doc. 38. House also has meritorious defenses to Plaintiff’s claims. Id. at 3.
Finally, because House acted promptly and the case is set for a trial term in October
2019, setting aside the Clerk’s Default will not prejudice Plaintiff.
ACCORDINGLY, it is
ORDERED:
1.

Defendant Dan B. House’s Verified Motion to Set Aside Order Directing

Entry of Default (Doc. 38) is GRANTED.
2.

Clerk’s Entry of Default (Doc. 37) entered on August 9, 2018 is

VACATED and SET ASIDE.
DONE and ORDERED in Fort Myers, Florida on this 16th day of August, 2018.

Copies:
Counsel of record

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