Hall v. Insurance Corporation of British Columbia
ORDER denying 184 Plaintiff's Motion to Strike Untimely Served and Filed Answer or Defendant, and/or for a Judicial Default, and for Attorneys' Fees; denying 188 Defendant's Cross-Motion for Attorney's Fees. Signed by Magistrate Judge Leslie Hoffman Price on 11/17/2022. (MKH)
Case 6:20-cv-01992-CEM-LHP Document 189 Filed 11/17/22 Page 1 of 5 PageID 3560
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:20-cv-1992-CEM-LHP
INSURANCE CORPORATION OF
This cause came on for consideration without oral argument on the following
motions filed herein:
MOTION: PLAINTIFF’S MOTION TO STRIKE UNTIMELY
SERVED AND FILED ANSWER OF DEFENDANT
INSURANCE CORPORATION OF BRITISH
COLUMBIA, AND/OR FOR A JUDICIAL DEFAULT,
AND FOR ATTORNEYS’ FEES (Doc. No. 184)
November 7, 2022
THEREON it is ORDERED that the motion is DENIED.
MOTION: INSURANCE CORPORATION OF BRITISH
COLUMBIA’S RESPONSE TO PLAINTIFF’S
MOTION TO STRIKE ANSWER AND/OR JUDICIAL
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DEFAULT AND FOR ATTORNEY’S FEES AND
INSURANCE CORPORATIO NOF BRITISH
COLUMBIA’S CROSS-MOTION FOR ATTORNEY’S
FEES (Doc. No. 188)
November 15, 2022
THEREON it is ORDERED that the motion is DENIED.
On September 27, 2022, the Court issued an Order denying Defendant,
Insurance Corporation of British Columbia’s amended motion to dismiss the
Doc. No. 173.
Pursuant to Federal Rule of Civil Procedure
12(a)(4)(A), Defendant had 14 days from the date of this Order – October 11, 2022 –
to answer the Complaint.
However, Defendant did not file its answer by this
deadline, instead filing its answer and affirmative defenses on November 7, 2022 –
without explanation and without seeking leave of Court. Doc. No. 183.
Picking up on this deficiency, Plaintiff Richard Hall, through counsel, has
filed the above-styled motion seeking to strike the late-filed answer, and/or for the
entry of judicial default against Defendant, as well as an award of fees. Doc. No.
In response, Defendant opposes and seeks fees “given the clear case
precedent on the issue and the fact that Plaintiff’s Motion . . . could have been
avoided through basic inquiry, candor, and reasonable notice.” Doc. No. 188.
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First, Plaintiff’s motion to strike and/or for default.
Doc. No. 184.
Contrary to Plaintiff’s hyperbolic rhetoric, Defendant was “only” 27 days tardy in
its filing of answer and affirmative defenses, not the “more than twenty-eight (28)
months” Plaintiff appears to imply. And while it is undisputed that Defendant
failed to meet its filing deadline and failed to seek leave of Court to cure this
deficiency, the undersigned is all too well aware that the parties have been actively
litigating this case for several years, with extensive discovery practice, and that – on
Plaintiff’s motion – the deadlines in this case – including the discovery deadline –
have been extended. See Doc. Nos. 147, 160, 163. The fact that Defendant filed its
answer only after the required Local Rule 3.01(g) conferral does not indicate any
malice or gamesmanship on the part of Defendant, but rather shows that the meet
and confer process largely works.
In addition, the undersigned notes the strong policy in this Circuit favoring
resolution of cases on the merits and viewing defaults with disfavor. See In re
Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003). See also Fla. 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))). “[W]hen doubt exists as to whether a default should be granted or
vacated, the doubt should be resolved in favor of the defaulting party.” Kilbride v.
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Vrondran, No. 07-0389-WS-M, 2007 WL 2775185, at *2 (S.D. Ala. Sept. 21, 2007)
(citation omitted). For these reasons, Plaintiff’s motion (Doc. No. 184) – including
the legally unsupported request for fees – is DENIED.
Second, Defendant’s combination response, and motion for fees. Doc. No.
Defendant’s filing is also replete with hyperbolic rhetoric, and notably
provides no explanation for its failure to answer the Complaint within the time
afforded by Fed. R. Civ. P. 12, or its failure to seek approval from the Court before
filing same. However, as noted above, the parties have been actively litigating this
case for more than two (2) years, there is a strong policy against defaults when a
case can be resolved on its merits, and the undersigned finds no prejudice in
permitting the delayed answer to stand. But, the undersigned is unpersuaded by
Defendant’s legally unsupported request for attorney’s fees, and therefore
Defendant’s motion (Doc. No. 188) is DENIED.
The undersigned reminds counsel for both sides that they are to engage in
litigation in this District in a civil and cooperative manner – the recent filings that
appear to be increasing in hostility are both troubling and not well taken.
DONE and ORDERED in Orlando, Florida on November 17, 2022.
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Copies furnished to:
Counsel of Record
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