TraderPlanet.com, LLC v. The Foundation for the Study of Cycles, Inc.

Filing 13

ORDER: Defendant's Motion to Set Aside Clerk's Default (Dkt. 12) is GRANTED. The Clerk's Default against Defendant (Dkt. 7) is hereby VACATED. Defendant shall file a response to the complaint within fourteen (14) days of this Order. The parties shall file their joint case management report within twenty (20) days of this Order. Plaintiff's Motion for Default Judgment (Dkt. 8) is DENIED AS MOOT. Signed by Judge James S. Moody, Jr on 3/5/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

TRADERPLANET.COM,
Plaintiff,
v.

Case No. 8:13-cv-3120-T-30TBM

THE FOUNDATION FOR THE
STUDY OF CYCLES, INC.,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion to Set Aside Clerk’s
Default (Dkt. 12). Upon consideration of same, the motion is granted.
On January 17, 2014, Plaintiff perfected service on Defendant. On February 10, 2014,
Plaintiff moved for a clerk’s default based on Defendant’s failure to appear or respond to the
complaint. The Clerk entered the default the following day.
On March 3, 2014, Defendant filed the instant motion, requesting the Court to vacate
the clerk’s default.
Rule 55(c) of the Federal Rules of Civil Procedure provides that a court may set aside
an entry of default “for good cause.” “[D]efaults are seen with disfavor because of the strong
policy of determining cases on their merits.” Fla. Physician’s Ins. Co. Inc. v. Ehlers, 8 F.3d
780, 783 (11th Cir. 1993).

Defendant has established adequate good cause. Defendant’s neglect in filing a timely
response to the complaint was neither willful nor culpable. The party responsible for
obtaining counsel is located in Romania; he had difficulty timely securing counsel. More
important, however, Plaintiff will suffer little or no prejudice by the delay. This case is in
its infancy. Further, Defendant presents a meritorious defense; Defendant argues that
Plaintiff’s trademark action will ultimately fail because there is no likelihood of confusion.
In sum, any slight prejudice to Plaintiff is clearly outweighed by the strong policy of
determining cases on their merits.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendant’s Motion to Set Aside Clerk’s Default (Dkt. 12) is GRANTED.

2.

The Clerk’s Default against Defendant (Dkt. 7) is hereby VACATED.

3.

Defendant shall file a response to the complaint within fourteen (14) days of
this Order.

4.

The parties shall file their joint case management report within twenty (20)
days of this Order.

5.

Plaintiff’s Motion for Default Judgment (Dkt. 8) is DENIED AS MOOT.

DONE and ORDERED in Tampa, Florida on March 5, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2013\13-cv-3120.vacateclerk'sdefault.frm

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