Barberi v. Retouch Doctors, LLC, et al
ORDER granting 24 Motion to Set Aside Default. Signed by Judge Robert N. Scola, Jr on 8/7/2017. (ail)
United States District Court
Southern District of Florida
Renzo Barberi, Plaintiff,
Civil Action No. 17-20880-Civ-Scola
Retouch Doctors, LLC d/b/a Wheels )
Doctor and others, Defendants.
Order Granting Motion to Set Aside Default
Defendant Retouch Doctors, LLC, doing business as Wheels Doctor
(“Retouch Doctors”), has moved to set aside the Clerk’s default that was
entered against it on July 10, 2017. (Mot. to Set Aside Default, ECF No. 24.)
The Plaintiff has not responded to the Defendant’s motion, and the time to do
so has passed.
“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., 922 F. Supp. 1534, 1536
(S.D. Fla. 1996) (Moore, J.). 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, varying from situation to situation.
It is also a liberal one—but not so elastic as to be devoid of substance.” Id. To
determine whether good cause exists, the Court may consider (1) whether the
defaulting party presents a meritorious defense; (2) whether the default was
culpable or willful; and (3) whether setting it aside would prejudice the
With respect to the first factor, Retouch Doctors notes that the
Complaint alleges that the parking facilities of the building complex in which
its store is located are not compliant with the ADA. (See Mot. at 2-3; Compl.,
ECF No. 1.) Retouch Doctors alleges that, pursuant to its lease, it is not
responsible for the common areas of the building complex. (Mot. at 3.)
Therefore, Retouch Doctors’s defense is that its landlord is the party
responsible for the alleged violations of the ADA. (Answer at 5, ECF No. 23.)
Retouch Doctors’s defense raises at least a hint of a suggestion that its case
could have merit. See Griffin IT Media, Inc. v. Intelligentz Corp., No. 13-cv20600, 2008 WL 162754, at *3 (S.D. Fla. 2008) (Marra, J.) (noting that
likelihood of success is not the measure; the movant need only provide a hint
of a suggestion that its case has merit) (internal quotations and citations
With respect to the second factor, Retouch Doctors asserts that its
actions were not willful, but were the result of excusable neglect. (Mot. at 4-5.)
In support of this assertion, Retouch Doctors’s manager, George Velasquez,
submitted an affidavit that states that he contacted the manager of the
building complex, Hugo Bosque, as soon as he was served with the Complaint.
(Aff. ¶ 4.) Velasquez alleges that Bosque told him that the landlord was
responsible for anything outside of the footprint of Retouch Doctors’s shop, and
Bosque subsequently sent Velasquez an “ADA Assistance Group, Inc.
Compliance Inspection Report” that stated that all of the alleged violations were
located outside of his shop. (Id. ¶¶ 5-6.) Velasquez was under the impression
that the landlord was resolving the lawsuit, and was not aware that anything
further was expected of Retouch Doctors until he received a letter from
Plaintiff’s counsel indicating that he was moving for a default. (Id. ¶¶ 6-7.) At
that time, Velasquez immediately contacted counsel, who moved to set aside
the default within ten days. (Mot. at 2-3.) Based on these factual allegations,
Retouch Doctors’s conduct does not rise to the level of willfulness, and it acted
within a reasonable time to vacate the entry of default. See Walter v. Blue Cross
& Blue Shield United of Wisconsin, 181 F.3d 1198, 1202 (11th Cir. 1999)
(“‘excusable neglect’ is understood to encompass . . . negligence” as well as
innocent oversight) (quoting Pioneer Investment Serv’s Co. v. Brunswick
Associates Limited Partnership, 507 U.S. 380, 394 (1993)); Griffin IT Media,
2008 WL 162754, at *2 (setting aside default because even inexcusable neglect
was not willful or culpable, and the defendant acted in a reasonable time to
vacate the entry of default).
Finally, there is no evidence that the Plaintiff will suffer any prejudice if
the default is vacated. Retouch Doctors is the only remaining Defendant in this
matter, and the case is in the early stages of litigation. Furthermore, the
Plaintiff has not submitted an opposition to the Defendant’s motion that
identifies any prejudice that he will suffer if the default is vacated.
Accordingly, the Court grants Retouch Doctors’s motion to set aside the
Clerk’s entry of default (ECF No. 24).
Done and ordered at Miami, Florida on August 7, 2017.
Robert N. Scola, Jr.
United States District Judge
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