Tucker v. Cherryden, LLC

Filing 19

ORDER: Defendant's Motion to Set Aside Default 17 is GRANTED. The Clerk is directed to set aside the Default 6 entered on July 31, 2012. Plaintiff's Motion for Entry of Default Judgment 7 and Plaintiff's Motion to Strike Defendant's Answer 16 are DENIED AS MOOT. The hearing previously scheduled for September 13, 2012, is cancelled. Signed by Judge Virginia M. Hernandez Covington on 9/10/2012. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHANTELLE TUCKER,
Plaintiff,
v.

Case No. 8:12-cv-1429-T-33TGW

CHERRYDEN, LLC,
Restaurant,

d/b/a

Denny’s

Defendant.
________________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Chantelle Tucker’s Motion for Entry of Default Judgment (Doc.
# 7), filed on August 14, 2012, Plaintiff’s Motion to Strike
Defendant’s Answer and Affirmative Defenses (Doc. # 16), filed
on September 7, 2012, and Defendant Cherryden, LLC’s Motion to
Set Aside Default and Response to Plaintiff’s Motion for
Default Judgment (Doc. # 17), filed on September 7, 2012.
For the reasons that follow, the Court grants Defendant’s
Motion to Set Aside Default, denies as moot Plaintiff’s Motion
to Strike and Motion for Default Judgment, and cancels the
hearing previously set for September 13, 2012.
I.

Background
Plaintiff,

a

line

cook,

filed

this

action

against

Defendant, her former employer, on June 28, 2012, alleging
violations of the Pregnancy Discrimination Act, Title VII of

the Civil Rights Act, and the Florida Civil Rights Act
following her termination from a Denny’s Restaurant. (Doc. #
1).
Defendant was served with the Complaint and a Summons in
a Civil Action on July 3, 2012. (Doc. # 4).
to timely respond to the Complaint.

Defendant failed

Plaintiff promptly moved

for the entry of Clerk’s default, and on July 31, 2012, the
Clerk

entered

its

default

against

Defendant

pursuant

Federal Rule of Civil Procedure 55(a). (Doc. # 6).

to

Plaintiff

filed her Motion for Entry of Default Judgment (Doc. # 7) on
August 14, 2012. On August 17, 2012, this Court set a hearing
on the Motion for Default Judgment for September 13, 2012, and
requested further briefing from Plaintiff on the issue of
damages as well as other matters.
On August 22, 2012, Defendant filed its Answer and
Affirmative Defenses. (Doc. # 11). On September 7, 2012,
Plaintiff filed her Motion to Strike Defendant’s Answer and
Affirmative Defenses (Doc. # 16), and Defendant filed its
Motion to Set Aside Default (Doc. # 17).

In the Motion to Set

Aside

that

Default,

Defendant

explains

“through

an

administrative mishap,” the Summons and Complaint were not
timely furnished to Defendant’s counsel after service upon
Defendant’s corporate representative. (Doc. # 17 at 2).
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Counsel for Defendant explains that he promptly secured local
counsel and filed the Answer and Affirmative Defenses days
later.

Counsel

for

Defendant

emphasizes

that

he

filed

nineteen Affirmative Defenses and believes that Defendant has
a number of meritorious defenses to this action.
II.

Analysis
To overcome the Clerk’s default against it, Defendant

must show good cause pursuant to Rule 55(c), Fed. R. Civ. P.
In Tyco Fire & Security, LLC v. Alcocer, 218 F. App’x 860
(11th Cir. 2007), the court explained, “[t]he entry of a
default against a defendant, unless set aside pursuant to Rule
55 (c), severely limits the defendant’s ability to defend the
action.” Id. at 863.

The court further explained, “while a

default is not treated as an absolute confession by the
defendant of his liability and of the plaintiff’s right to
recover,

a

defaulted

defendant

is

deemed

to

admit

the

plaintiff’s well-pleaded allegations of fact.” Id. (internal
citations omitted).

On the other hand, the Eleventh Circuit

has noted that “defaults are seen with disfavor because of the
strong policy of determining cases on their merits.” Fla.
Physician’s Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir.
1993).

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In balancing these considerations and determining whether
to set aside a Clerk’s entry of default, courts generally
evaluate the following factors: (1)

whether the default is

culpable or willful; (2) whether setting aside default would
prejudice the adversary; and (3) whether the defaulting party
presents a meritorious defense. Compania Interamerica ExportImport, S.A. v. Compania Dominicana De Aviacion, 88 F.3d 948,
951 (11th Cir. 1996).
Under

the

circumstances

of

this

case,

the

Court

determines that it is appropriate to set aside the Clerk’s
default.

The default was neither willful nor culpable.

In

addition, Defendant has filed its Answer and Affirmative
Defenses evidencing potentially meritorious defenses.

Among

other Defenses, Defendant contends that Plaintiff failed to
exhaust administrative remedies and failed to file a timely
charge of discrimination with the EEOC.

Defendant also

asserts that Plaintiff is estopped from pursuing this action
and that she waived her right to assert the claims contained
in her Complaint.

Defendant also asserts the defenses of

unclean hands and laches.

Furthermore, Defendant raises a

statute of limitations defense.
In addition, the Court finds that Plaintiff will not
suffer any prejudice if the default is set aside. This action
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is in its infancy, and setting aside the default will not
compromise Plaintiff’s claims in any way.

Plaintiff merely

secured a Clerk’s default, as opposed to a final default
judgment, and the passage of time between the entry of Clerk’s
default and Defendant’s Motion to Set Aside Default, 39 days,
does not warrant the drastic penalty of forever depriving
Defendant of its ability to defend against this action.
Based on these considerations and the strong policy in
favor of deciding cases on their merits, the Court grants the
Motion to Set Aside Default, and denies as Moot Plaintiff’s
Motion

to

Strike

Answer

and

Affirmative

Defenses

Plaintiff’s Motion for Entry of Default Judgment.

and

The Court

will allow this case to proceed on the merits without delay.
The next step required by the Court’s Local Rules is the
filing of a Case Management Report as delineated in Local Rule
3.05.

The Court will not tolerate any further delay in this

action.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant’s Motion to Set Aside Default (Doc. # 17) is
GRANTED.

The Clerk is directed to set aside the Default

(Doc. # 6) entered on July 31, 2012.

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(2)

Plaintiff’s Motion for Entry of Default Judgment (Doc. #
7) and Plaintiff’s Motion to Strike Defendant’s Answer
(Doc. # 16) are DENIED AS MOOT.

(3)

The hearing previously scheduled for September 13, 2012,
is cancelled.
DONE and ORDERED in Chambers, in Tampa, Florida, this

10th day of September, 2012.

Copies:
All Counsel of Record

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