Atkins et al v. Smalbach et al

Filing 21

ORDER denying 17 Plaintiffs' Motion for default; granting 19 Defendant's Motion for Extension of Time to Answer or respond. Signed by Magistrate Judge Philip R. Lammens on 2/23/2015. (AR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JAMES W. ATKINS, et al.,
Plaintiffs,
v.

Case No: 5:14-cv-593-Oc-32PRL

NEAL S. SMALBACH, et al.,
Defendants.

ORDER
Plaintiffs have the filed the instant motion for clerk’s default against Defendant, Mick &
Associates (“Mick”).

(Doc. 17).

Mick acknowledges that it failed to timely answer the

complaint but argues that the Court should excuse this inadvertent delay and allow Mick to now
file its response to the Second Amended Complaint. (Docs. 18 & 19).
Pursuant to Rule 55(a), Fed.R.Civ.P, “[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.” While Mick has failed to timely
answer the Second Amended Complaint, it cannot be said that it has not “otherwise defend[ed]”
this action. Indeed, after removing Plaintiffs’ Second Amended Complaint, Mick has actively
defended against Plaintiffs’ motion to remand (see Docs. 7, 9, 11, 15) and promptly responded to
the instant motion.
Accordingly, and in accordance with the judicial preference for a decision on the merits,
Plaintiffs’ motion for clerk’s default (Doc. 17) is due to be DENIED. Mick’s motion for
enlargement of time to respond to Plaintiffs’ Second Amended Complaint (Doc. 19) is

GRANTED. Mick shall file and serve its response to Plaintiffs’ Second Amended Complaint on
or before February 24, 2015.
DONE and ORDERED in Ocala, Florida on February 23, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Parties

-2-