National Builders Insurance Company v. Bradford Building Corporation et al

Filing 41

ORDER granting in part and denying in part 38 Motion for summary judgment; directing Plaintiff to file a motion for default judgment against Defendant Bradford Building Company on or before September 27, 2018. Signed by Judge Carlos E. Mendoza on 8/27/2018. (KMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

NATIONAL BUILDERS INSURANCE
COMPANY,
Plaintiff,
v.

Case No: 6:17-cv-977-Orl-41KRS

BRADFORD BUILDING
CORPORATION and KATHERINE
BARADARAN,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Motion for Summary Judgment (“Motion,”
Doc. 38). Plaintiff asks the Court to enter summary judgment against Defendants Bradford
Building Corporation (“Bradford”) and Katherine Baradaran. Baradaran failed to file a response
to Plaintiff’s Motion, and Plaintiff has filed a Notice (Doc. 40), representing that it conferred with
Baradaran’s counsel, who advised that Baradaran does not oppose Plaintiff’s Motion. Accordingly,
Plaintiff’s Motion will be granted as to Baradaran.
However, Bradford has not appeared in this action, and a clerk’s default was entered against
it on August 11, 2017. (Clerk’s Entry of Default, Doc. 20). The appropriate procedure against a
defendant in default is a motion for default judgment, not a motion for summary judgment. See
Phillips Factors Corp. v. Harbor Lane of Pensacola, Inc., 648 F. Supp. 1580, 1582–83 (M.D.N.C.
1986) (holding that a motion for default judgment, rather than a motion for summary judgment,
was the “appropriate avenue of relief” against a party subject to clerk’s default). Therefore,
Plaintiff’s Motion will be denied as to Bradford. If Plaintiff wishes to obtain a judgment against

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Bradford, it should file a motion for default judgment, containing a memorandum of law
establishing that it is entitled to default judgment. See Tyco Fire & Sec., LLC v. Alcocer, 218 F.
App’x 860, 863 (11th Cir. 2007) (“[B]efore entering a default judgment . . . the district court must
ensure that the well-pleaded allegations in the complaint . . . actually state a substantive cause of
action and that there is a substantive, sufficient basis in the pleadings for the particular relief
sought.”) (emphasis omitted).
Based on the foregoing, it is ORDERED and ADJUDGED as follows:
1. Plaintiff’s Motion for Summary Judgment (Doc. 38) is GRANTED in part. It is
GRANTED as to Defendant Katherine Baradaran but DENIED as to Defendant
Bradford Building Corporation.
2. On or before September 27, 2018, Plaintiff shall file a motion for default
judgment against Defendant Bradford Building Corporation.
3. Once all claims have been resolved in this matter, judgment will be entered
accordingly.
DONE and ORDERED in Orlando, Florida on August 27, 2018.

Copies furnished to:
Counsel of Record

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