Escandell v. Northside Imports, Inc. et al
ORDER granting 23 Motion to Set Aside Default. Signed by Judge Robert N. Scola, Jr on 11/29/2017. (kpe)
United States District Court
Southern District of Florida
Clemente Morejon Escandell,
Northside Imports, Inc., and others,
) Civil Action No. 17-22972-Civ-Scola
Order Granting Motion to Set Aside Default
This matter is before the Court on the Defendants’ motion to set aside
the Clerk’s default that was entered against them on November 9, 2017 for
their failure to timely respond to the Plaintiff’s statement of claim. (Mot., ECF
No. 23.) On November 1, 2017, the Plaintiff filed a notice that the Defendants
had failed to file a response to the statement of claim and requested that
default be entered against the Defendants (ECF No. 17). On November 3, 2017,
the Court entered an Order on Clerk’s Default Procedure (ECF No. 18). On
November 7, 2017, the Defendants filed their response to the statement of
claim (ECF No. 19). On November 9, 2017, the Clerk entered default against
the Defendants (ECF No. 22).
“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 considers (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 the exception of their failure to file a response to the statement of
claim, the Defendants have been actively defending this matter. The
Defendants timely filed an Answer and Affirmative Defenses to the Complaint,
jointly submitted a discovery and conference report together with the Plaintiff,
have been actively participating in the discovery process, and recently
participated in mediation. The only prejudice identified by the Plaintiff is that
additional fees have been incurred in drafting and filing a response to the
motion to set aside the default. (Resp. 5, ECF No. 30.) However, had the
Plaintiff simply notified the Defendants that the deadline to file a response to
the statement of claim had lapsed rather than requesting that default be
entered, he would not have had to incur fees in responding to the Defendants’
motion to set aside the default. The Plaintiff has not identified any prejudice
due to the delay in the filing of the Defendants’ response to the statement of
claim. See Connecticut State Dental Ass’n v. Anthem Health Plans, Inc., 591
F.3d 1337, 1357 (11th Cir. 2009) (“the inquiry is whether prejudice results
from the delay . . .”) (emphasis in original) (citations omitted).
Although the culpability and willfulness factor do not lean in the
Defendants’ favor, the degree is not great. This is not a situation in which the
Defendants were provided multiple opportunities to file a response to the
statement of claim but failed to do so, since neither the Plaintiff nor the Court
ever notified the Defendants that the deadline to file a response to the
statement of claim had passed. See Compania Interamericana Export-Import,
S.A., 88 F.3d at 952 (“Most failures to follow court orders are not ‘willful’ in the
sense of flaunting an intentional disrespect for the judicial process. However,
when a litigant has been given ample opportunity to comply with court orders
but fails to effect any compliance, the result may be deemed willful.”) The
Defendants quickly filed their response after the Plaintiff requested that default
be entered against them; indeed, the response was filed before the Clerk
entered the default.
Accordingly, the Court grants the Defendants’ motion to set aside the
Clerk’s entry of default (ECF No. 23).
Done and ordered at Miami, Florida on November 29, 2017.
Robert N. Scola, Jr.
United States District Judge
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