A default occurs in litigation when a party fails either to respond to a lawsuit, and less often can be entered against a party who fails to comply with a court order.
In Florida, a party in most cases has 20 days to answer a lawsuit. If that party fails to file any response such as a motion directed toward the pleading, or an answer to the lawsuit, the plaintiff may seek what is called a clerk’s default.
The Rule in Florida for a Clerk’s entered default is 1.500(a), which provides:
Florida Rule of Civil Procedure, Rule 1.500, Defaults and Final Judgments Thereon
(a) By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.
This type of default is entered by the Clerk ONLY when the defaulting party has filed absolutely nothing with the Court. A Clerk’s default alone is not a judgment, but just represents that the opposing party has failed to answer within the proscribed time. The Plaintiff will need to get a court default or a final default judgment (usually achieved at the same time) to recover money or other remedies from the defaulting party.
However, if the clerk defaulted party wants to respond to the lawsuit and defend the case, the clerk defaulted party will have to file a motion to vacate the clerk’s default.
Fla. R. Civ. P. 1.500(b) provides when a Court may enter a default, and states.
(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, that party shall be served with notice of the application for default.
It should be noted that a Plaintiff need not obtain a Clerk’s default to obtain a Court Default and Final Judgment. However, because obtaining a Final Judgment requires time in front of a judge, and with Court overcrowding as it is, many prefer to obtain a clerk’s default since it usually can be obtained more quickly than a Court Default. This is important because at any time before a Clerk’s default is entered or a Court Default is entered, if the Defendant does file an answer or motion directed at the pleading, a default is inappropriate, as stated in Rule 1.500(c).
(c) Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default files any paper after the default is entered, the clerk shall notify the party of the entry of the default. The clerk shall make an entry on the progress docket showing the notification.
Vacating Defaults. – Florida public policy favors the setting aside of defaults so that controversies may be decided on the merits. Jeyanandarajan, 863 So. 2d at 433 (quoting Lloyd’s Underwriter’s, 801 So. 2d at 139).
If you are defaulted, you need to act quickly. Likely you will need an attorney, since vacating a default is complicated and requires a motion, an affidavit, and a usually a hearing (in State Court.)
In Florida State Court, to Vacate a Judgment, a party must show that 3 factors exist. (See Fla. R. Civ. 1.540)
1. Excusable Neglect – is found “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985); “‘Excusable neglect must be proven by sworn statements or affidavits.'” Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So. 2d 1355, 1356 (Fla. 2d DCA 1998),
2. A Meritorious Defense – In assessing a defendant’s meritorious defense, “the likelihood of success is not the measure. [Defendant’s] allegations are meritorious if they contain even a hint of suggestion, which, if proven at trial, would constitute a complete defense.” Sobkowski v.Wyeth, 2004 U.S. Dist. LEXIS 28726, 2004 WL 3569703 at *3.
3.Due Diligence in vacating the Default- The Defaulted party must act with reasonable speed in attempting to vacate the default.
In Florida Federal Courts the standard is varied slightly,
The United States Court of Appeals for the Eleventh Circuit has set forth the relevant standard regarding motions to vacate default judgments: “to establish mistake, inadvertence, or excusable neglect under Rule 60(b)(1), a defaulting party must show that: (1) it had a meritorious defense that might have affected the outcome; (2) granting the motion would not result in prejudice to the non-defaulting party; and (3) a good reason existed for failing to reply to the complaint. In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295 (11th Cir. 2003) (internal quotation omitted). See NKDO, Inc. v. Tawii, 2008 U.S. Dist. Lexis 83964.
From that the Federal standard seemingly also has 3 elements:
1) A meritorious defense that might have affected the outcome- In assessing a defendant’s meritorious defense, “the likelihood of success is not the measure. [Defendant’s] allegations are meritorious if they contain even a hint of suggestion, which, if proven at trial, would constitute a complete defense.” Sobkowski v.Wyeth, 2004 U.S. Dist. LEXIS 28726, 2004 WL 3569703 at *3.
(2) granting the motion would not result in prejudice to the non-defaulting party- The fact that setting aside an entry of default would deprive a plaintiff from a quick resolution of the case “is not [ ] the type of prejudice relevant to the Court’s inquiry.” Sobkowski v. Wyeth, Inc., 2004 U.S. Dist. LEXIS 28726, 2004 WL 3569703, *2 (M.D.Fla. June 4, 2004). “Rather the prejudice to be considered [ ] is the effect of setting aside the default, if any, on Plaintiff’s ability to prosecute the case on the merits.” 2004 U.S. Dist. LEXIS 28726, [WL] at *2. Tyco Fire & Sec. v. Alcocer, 2009 U.S. Dist. LEXIS 27720, 8-9 (S.D. Fla. Mar. 23, 2009).
(3) a good reason existed for failing to reply to the complaint- In assessing good cause, a court should consider whether the default was the result of culpable or willful conduct on the part of defaulting party. Compania Interamericana Exp.-Imp., S.A. v. Compania Domenicana De Aviacion, 88 F.3d 948, 951 (11th Cir. 1996).
The Eleventh Circuit has repeatedly acknowledged that most failures to follow court orders are not willful, as long as the defendant was not given ample opportunity to comply and failed to do so. Compania Interamericana, 88 F.3d at 952; Robinson v. United States, 734 F.2d 735, 739 (11th Cir. 1984); Katz v. MRT, LLC., 2008 U.S. Dist. LEXIS 45586, L 2368210, *3 (S.D.Fla. June 10, 2008). Tyco Fire & Sec. v. Alcocer, 2009 U.S. Dist. LEXIS 27720, 8-9 (S.D. Fla. Mar. 23, 2009).
THIS ARTICLE IS NOT LEGAL ADVICE. IF YOU NEED HELP VACATING A DEFAULT, PLEASE FEEL FREE TO CALL US FOR A CONSULTATIONS.
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