Kennedy v. Grova et al

Filing 29

ORDER granting 21 Motion to Set Aside Default and Motion for Extension of Time to Respond to Complaint. 14 Clerks Entry of Default as to Arlene Grova is SET ASIDE. Arlene Grova shall respond to 1 Complaint by no later than 12/23/2011. Signed by Judge James I. Cohn on 12/9/2011. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-61354-CIV-COHN/SELTZER
PATRICIA L. KENNEDY,
Plaintiff,
v.
STEVE M. GROVA and
ARLENE C. GROVA,
Defendants.
_____________________________/
ORDER VACATING CLERK’S DEFAULT AGAINST ARLENE GROVA
AND GRANTING EXTENSION OF TIME TO RESPOND TO COMPLAINT
THIS CAUSE is before the Court upon Defendant Arlene C. Grova’s Motion to
Set Aside Clerk’s Default Against Arlene Grova and to Grant Extension of Time for Her
to File Response to Complaint [DE 21]. The Court has considered the motion, Plaintiff
Patricia L. Kennedy’s Response [DE 26], Ms. Grova’s Reply [DE 28], and the record in
this case, and is otherwise fully advised in the premises.
I. BACKGROUND
Plaintiff Patricia L. Kennedy filed this action on June 15, 2011, [DE 1] and
purportedly served both Defendants on August 12, 2011 [DE’s 10, 11].1 When
Defendants failed to appear, answer, or otherwise plead to the Complaint, Plaintiff
moved for a Clerk’s entry of default against both Defendants on October 20, 2011 [DE
12]. The next day, on October 21, 2011, the Clerk entered the defaults [DE 14].
On November 16, 2011, Plaintiff filed her Motion for Final Default Judgment [DE
16] and Verified Motion for Attorney Fees, Costs, and Litigation Expenses [DE 17].

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In a separate motion, Defendant Steve M. Grova challenges the validity of
service against him. See Motion to Quash Service of Process and Vacate Clerk’s
Default Against Steve M. Grova [DE 27]. In the motion at issue in this Order, Ms. Grova
does not challenge the validity of service against her.

Shortly after, on November 18, 2011, Ms. Grova filed the instant motion, requesting that
the Court set aside the default entered against her and allow her to respond to the
Complaint.
In support of her motion, Ms. Grova explains that she mistakenly believed that
the papers served upon her in this case were related to an earlier lawsuit, Access for
the Disabled, Inc. & Robert Cohen v. Steve Grova & Arlene Grova, Case No. 05-61378CIV-COHN (“2005 Case”). That case was resolved by Consent Decree on June 5,
2006. See Order Approving and Entering Consent Decree [DE 30] in 05:-61378-CIVCOHN. The instant motion represents that “[w]hen served with the Complaint in the
instant case, Defendant Arlene Grova, a 74 year old woman who lives alone, had been
recently hospital[ized] and was unable to attend to the affairs of life due to illness. She
was unable to consult with counsel or understand the significance of the summons and
complaint. She mistakenly thought [the Complaint] related to the earlier litigation and
simply put it aside.” Mot. at 3; see also Declaration of Arlene Grova [DE 21-6] ¶¶ 5-6.
Ms. Grova did not realize that the Complaint related to a different lawsuit and required
her to take action until her son visited her the second week of November 2011 and
came across the documents. Mot. at 3; see also Decl. of Arlene Grova ¶¶ 8-9.
II. DISCUSSION
“It is the general rule that default judgments are ordinarily disfavored because
cases should be decided upon their merits whenever reasonably possible.” Creative
Tile Marketing, Inc. v. SICIS Intern., S.r.L., 922 F. Supp. 1534, 1536 (S.D. Fla. 1996).
A court may set aside a clerk’s default for good cause shown. Fed. R. Civ. P. 55(c);
see also Compania Interamericana Export-Import, S.A. v. Compania Dominicana de
Avacion, 88 F.3d 948, 951 (11th Cir. 1996). “‘Good cause’ is a mutable standard,

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varying from situation to situation. It is also a liberal one—but not so elastic as to be
devoid of substance.” Compania Interamericana, 88 F.3d at 951. To determine
whether good cause exists, the Court considers “whether the default was culpable or
willful, whether setting it aside would prejudice the adversary, and whether the
defaulting party presents a meritorious defense.” Id.
First, Ms. Grova emphasizes that her default was not culpable or willful, as her
“mistake was innocent; she was impaired; she [was] unable to attend to the affairs of
life and was confused by the similarity of the parties, and what appeared to be identical
allegations concerning identical property for which a Consent Decree had previously
been entered.” Mot. at 4. In response, Plaintiff argues that Ms. Grova’s conduct was
culpable or willful because she was released from the hospital on September 2, 2011,
but did not alert the Court to her hospitalization until November 18, 2011. See Resp. at
4. Plaintiff also contends that illness, by itself, should not be sufficient to set aside a
default. See id. at 3-4. Ms. Grova explains, however, that she did not realize she had
to respond to the Complaint until the second week of November when her son visited
her and came across the Summons and Complaint. See Mot. at 3. She further notes
that the similarity between this case and the 2005 case confused her. See Mot. at 4.
Plaintiff argues that Ms. Grova’s confusion is no excuse, especially when the Summons
contained language warning Ms. Grova that her failure to respond would result in the
entry of a judgment by default. See Resp. at 4-5. The Court disagrees, and finds that
under the circumstances, Ms. Grova’s behavior was neither culpable nor willful.
Second, Plaintiff concedes, that vacating the default will not prejudice Plaintiff in
her ability to prosecute the case on the merits. See Resp. at 5. Plaintiff argues that the
delay “would impact public policy as it would result in a greater delay in correcting the
barriers to access at the property,” Resp. at 5-6, but the standard is not whether the
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delay would prejudice the public, but rather whether it would prejudice the adversary.
See Compania Interamericana, 88 F.3d at 951. Further, as Ms. Grova notes, “it is in
the Plaintiff’s best interest to have an actual party before [her] from whom to obtain the
relief requested,” Mot. at 4.
Third, and finally, Ms. Grova contends that she has a meritorious defense in that
she “expressly denies any wrongdoing with regard to the allegations made in the instant
case.” Mot. at 5. Plaintiff suggests that this denial does not constitute a meritorious
defense because the Broward County, Florida records [DE 26-1] show Ms. Grova’s
name listed as an owner of the property at issue. Nonetheless, in her Reply, Ms. Grova
maintains her denial. To the extent that the parties dispute the facts, this is not the
appropriate time to resolve such a dispute. Ms. Grova need only show that she has a
meritorious defense, and she has done so here.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Defendant Arlene C. Grova’s Motion to Set
Aside Clerk’s Default Against Arlene Grova and to Grant Extension of Time for Her to
File Response to Complaint [DE 21] is GRANTED. The Clerk’s Default [DE 14],as it
relates to Defendant Arlene C. Grova, is hereby SET ASIDE. Ms. Grova shall respond
to the Complaint [DE 1] by no later than December 23, 2011.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 9th day of December, 2011.

Copies provided to:
Counsel of record via CM/ECF
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