Lennen et al v. Marriott Ownership Resorts, Inc. et al

Filing 84

ORDER denying 64 Motion for entry of default; denying 69 Motion to Strike ; granting 72 Motion for Extension of Time to File. Signed by Magistrate Judge Thomas B. Smith on 10/11/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ANTHONY LENNEN and BETH
LENNEN,
Plaintiffs,
v.

Case No: 6:16-cv-855-Orl-41TBS

MARRIOTT OWNERSHIP RESORTS,
INC., MARRIOTT VACATIONS
WORLDWIDE CORPORATION,
MARRIOTT RESORTS TRAVEL
COMPANY, INC., MARRIOTT TITLE
INSURANCE, MVC TRUST OWNERS
ASSOCIATION, FIRST AMERICAN
FINANCIAL, FIRST AMERICAN TRUST,
FSB, FIRST AMERICAN TITLE
COMPANY, ORANGE COUNTY
FLORIDA, ORANGE COUNTY
COMPTROLLER and MARRIOTT
INTERNATIONAL, INC.,
Defendants.
ORDER
Pending before the Court are Plaintiffs’ Motion for Entry of Default against Orange
County, Florida (Doc. 64); Plaintiff’s Motion to Strike Orange County’s Late-Filed Notice of
Joinder And Late-Filed Motion to Dismiss (Doc. 69); and Orange County’s Motion for
Extension of Time to File Notice of Joinder and Motion to Dismiss Out of Time (Doc. 72).
Upon consideration of the docket and the responses to the motions, the motions for entry
of default and to strike are due to be denied and the motion for extension of time is due to
be granted.
As the County notes, Federal Rule of Civil Procedure 55(a) provides:
(a) Entering a Default. When 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.
Prior to the filing of the instant motion for default, the County appeared and moved
for an extension of time to respond to the complaint, joined in the Orange County
Comptroller’s timely filed motion to dismiss (Docs. 50, 59), and filed its own presently
pending motion to dismiss (Doc. 60). On the face of the record, the County has appeared
and defended. See Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir. 1949) (“The words
‘otherwise defend’ refer to attacks on the service, or motions to dismiss … which may
prevent default without presently pleading to the merits.”). Plaintiffs ask the Court to strike
the joinder and motion to dismiss filed by the County, as they were filed after the date set
by the Court for responding to the complaint. While the County acknowledges that its
filings were untimely, the relief sought by Plaintiffs is not warranted.
The County contends that the delay in filing its papers was minimal and due to an
inadvertent clerical error in failing to include the County in the Comptroller’s motion to
dismiss. The County asks that the Court allow the late filings, noting that its motion to
dismiss is all but identical to that filed by the Comptroller and contending that the error
constitutes “excusable neglect” which did not prejudice Plaintiffs. In light of this
explanation, Plaintiffs’ insistence that the County’s actions were not innocent, but the
result of “blatant and willful disregard for procedure” (Doc. 80) is unsupported and
unpersuasive. Moreover, the “prejudice” Plaintiffs complain of (dealing with the instant
motion practice relating to the untimely filing) is due in no small part to Plaintiffs’ filing for
entry of default after a motion to dismiss had already been filed.
The striking of a parties’ papers and entry of a default is a serious sanction
warranted only in egregious circumstances. Those circumstances are not present here. In

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view of the County’s active participation in this case, the preference for adjudicating
cases on the merits, and in the absence of any demonstrable prejudice to Plaintiffs by the
short delay in responding to the Complaint, I conclude that a default is not warranted.
Plaintiffs’ motions are DENIED and the County’s motion is GRANTED. Plaintiffs
shall file their response to the County’s motion to dismiss by October 21, 2016.
DONE and ORDERED in Orlando, Florida on October 8, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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