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Filing # 176997194 E-Filed 07/10/2023 09:39:39 AM
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT,
IN AND FOR CHARLOTTE COUNTY, FLORIDA
VENISSA DRIGGERS, as Personal Representative CASE NO.: 21-000410-CA
of the Estate of DAVID B. FLICK, Deceased,
MARK BARCIA, HOOTERS OF PORT CHARLOTTE,
INC., BWR NORTH PORT, LLC d/b/a BUFFALO
WINGS AND RINGS, ATLANTA RESTAURANT
PARTNERS, LLC d/b/a TGI FRIDAYS, AND
JACKMONT HOSPITALITY, INC. d/b/a TGI
FRIDAYS,
NOTICE OF FILING
HOOTERS OF PORT CHARLOTTE, INC. (“HPC”), by and through its undersigned
counsel, hereby gives notice of the filing of its proposed Order Granting HPC’s Amended Motion
For Relief From, And To Vacate, the Final Judgment against HPC, a copy of which is attached
hereto (the “Proposed Order”), though HPC reserves the right to amend and/or supplement the
Proposed Order as may become necessary.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 10th day of July, 2023, a true and correct copy of the
foregoing was filed with the Clerk by using the Florida Courts e-Filing Portal, which will send an
automatic e-mail message to the following parties registered with the e-Filing Portal System on the
attached Service List.
CHUSID, KATZ & SPOSATO, LLP
Counsel for Defendant Hooters of Port Charlotte, Inc.
5850 Coral Ridge Drive, Suite 201
Coral Springs, Florida 33076
Telephone: (954) 340-2200
By: /s/ Joshua W. Brankamp
Mitchel Chusid, Esq.
Florida Bar No.: 879282
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
mchusid@cksattorneys.com
Joshua Brankamp, Esq.
Florida Bar No.: 31315
jbrankamp@cksattorneys.com
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
Randall L. Spivey, Esq.
Andrew Abel, Esq.
Spivey Law Firm, Personal Injury Attorneys, P.A.
13400 Parker Commons Boulevard
Fort Myers, Florida 33912
Tel: 239-337-7483
Fax: 239-337-7484
randall@spiveylaw.com
Andrew@SpiveyLaw.com
T.R. Unice Jr., Esq.
Jeff Jensen, Esq.
Unice, Salzman, Jensen, P.A.
1815 Little Road
Trinity, FL 34655
Tel: 727-723-3772
jjensen@unicesalzman.com
trunice@unicesalzman.com
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
IN THE CIRCUIT COURT OF THE 20 JUDICIAL CIRCUIT,
IN AND FOR CHARLOTTE COUNTY, FLORIDA
VENISSA DRIGGERS, as Personal Representative CASE NO.: 21-000410-
of the Estate of DAVID B. FLICK, Deceased,
Plaintiff,
MARK BARCIA, HOOTERS OF PORT CHARLOTTE,
INC., BWR NORTH PORT, LLC d/b/a BUFFALO
WINGS AND RINGS, ATLANTA RESTAURANT
PARTNERS, LLC d/b/a TGI FRIDAYS, AND
JACKMONT HOSPITALITY, INC. d/b/a TGI
FRIDAYS,
Defendants.
ORDER GRANTING DEFENDANT HOOTERS OF PORT CHARLOTTE, INC.’S
AMENDED MOTION FOR RELIEF FROM, AND TO VACATE, FINAL JUDGMENT
This matter came before the Court upon the Amended Motion of Defendant Hooters of
Port Charlotte, Inc. (“HPC”) for Relief From, And To Vacate, Final Judgment (the “Amended
Motion”). After reviewing all materials submitted by the parties in support of and in opposition
to the Motion, hearing the argument of counsel for the parties at the evidentiary hearing on June
30, 2023, and at the continued evidentiary hearing on July 10, 2023, and being otherwise fully
advised in the premises, the Court orders that the Amended Motion is hereby GRANTED for the
reasons stated herein.
PROCEDURAL BACKGROUND
On January 13, 2023, a Non-binding Arbitration was held in this matter. On February 3,
2023, the Arbitrator filed his Notice of Service of Arbitrator's Sealed Non-Binding Arbitration
Findings and Award (the "Arbitration Award"), making February 27, 2023 the deadline for the
filing of a Motion for Trial De Novo to reject the Arbitration Award. See, Fla.R.Civ.P. 1.820(h);
Fla.R.Civ.P. 1.090(a); Fla.R.Gen.Prac.&Jud.Admin. 2.514(a)(1). Notwithstanding the deadline,
HPC did not file its Motion for Trial De Novo until 3:14 a.m. on February 28, 2023, three hours
and fourteen minutes after the deadline. At 8:59 a.m. on February 28, 2023, HPC filed a Motion
For Relief From Judgment, Decree, Decision, Arbitration Award, And/Or Order, And For
Extension Of Time (the “First Motion” [not to be confused with the subject Amended Motion]),
seeking relief from any forthcoming judgment or Arbitration Award “related to or arising out of
the Non-binding Arbitration.” At 2:15 p.m. on February 28, 2023, HPC filed an Affidavit In
Support of the First Motion.
At 4:19 p.m. on February 28, 2023, Plaintiff, Venissa Driggers (“Plaintiff”), as Personal
Representative of the Estate of David B. Flick, Deceased, filed her Motion To Unseal Arbitration
Award As To Defendants, Hooters Of Port Charlotte, Inc., et al., For Entry Of Final Judgment As
To Defendants, Hooters Of Port Charlotte, Inc., et al. (the “Motion to Unseal”). On March 1, 2023,
HPC filed its Supplemental Brief, Evidence, And Legal Authority In Support Of the First Motion.
On March 3, 2023, this Court heard and denied the First Motion given that no judgment had yet
been entered, following which the Court entered an Order on March 16, 2023, reflecting its denial
of the First Motion.
On April 5, 2023, the Court entered an Order granting Plaintiff’s Motion to Unseal and
instructing Plaintiff to submit to the Court a proposed Final Judgment in Plaintiff’s favor against
HPC in the total amount of $541,415.81. On April 10, 2023, the Court entered a Final Judgment
For Compensatory Damages And Taxable Costs As To HPC in that amount (the “Final
Judgment”).
On April 11, 2023, HPC filed the subject Amended Motion seeking relief from and to
vacate the Final Judgment, predicated upon the asserted excusable neglect of HPC’s counsel of
record Joshua Brankamp (“Brankamp,” “counsel for HPC,” or “HPC’s counsel”). Annexed as an
exhibit to the Amended Motion is the Sworn Amended Affidavit of Brankamp in support of the
Amended Motion (the “Amended Affidavit”). On June 13, 2023, Plaintiff’s counsel, and counsel
for Defendant Mark Barcia (“Barcia”), deposed Brankamp about his assertion of excusable neglect
in connection with the delayed filing of the Motion for Trial De Novo, following which an
evidentiary hearing was held on June 30, 2023, and a continued evidentiary on July 10, 2023.
Brankamp gave additional sworn testimony at the initial evidentiary and continued evidentiary
hearings.
FACTUAL BACKGROUND
Amended Affidavit
According to Brankamp’s Amended Affidavit, from September 2022 through the period of
in question, he was the primary attorney handling and responsible for HPC’s defense and it
was his responsibility to ensure the filing of HPC’s Motion for Trial De Novo on February 27,
2023. Also according to the Amended Affidavit, on February 27, 2023, Brankamp was authorized
and intended, and began, to formally file and serve HPC's Motion for Trial De Novo on February
27, 2023, and he uploaded the Motion for Trial De Novo into the Florida Courts E-filing Portal
On April 17, 2023, the Court entered an Order finding,
1. The Court reviewed in Camera emails Bates Stamped 1-77, representing
communications between Hooters, its carrier and counsel (2/3/23-2/27//23)
related to the non-binding arbitration award and request for trial de novo.
2. The emails reflect that counsel for Hooters had authority to file a motion for
trial de novo on February 27, 2023 by email sent at 10:26 a.m.
(April 17, 2023 Order, ¶¶1-2). See also Brankamp Dep. Tr. at 38-41, 50, and June 30, 2023
Hearing Tr. at 43, 64-65, 72, regarding Brankamp’s receipt of authorization at 10:26 a.m. on
February 27, 2023, to reject the Arbitration Award and file HPC’s Motion for Trial De Novo.
(the "Portal") during the early afternoon of February 27, 2023, intending to complete the filing
prior to close of business. According to the Amended Affidavit, Brankamp then accidentally and
inadvertently failed to complete the submission/filing process in the Portal due to becoming
distracted, absorbed and preoccupied with other serious litigation matters and obligations and
litigation/work-related preparations for a longstanding, pre-paid, week-long, out-of-state, family
vacation which was scheduled to commence early on the morning of March 4, 2023. The
Amended Affidavit states that Brankamp was scheduled to begin driving his family from South
Florida to West Virginia on the morning of March 4, 2023, only to return to South Florida on or
about March 12, 2023. Notwithstanding the vacation, Brankamp “had numerous important,
weighty, significant litigation events and obligations scheduled from February 28, 2023 through
the end of the vacation,” which he had to prepare for and prepare other attorneys to handle.
According to the Amended Affidavit, the litigation matters included, but were not limited to, (i)
an important mediation on March 6, 2023, for a separate lawsuit where damages were alleged to
be more than $50 million and where the trial was scheduled to begin in May 2023 (the
“Construction Defect Case”), (ii) numerous depositions of experts, (iii) a Calendar Call, and (iv) a
Case Management Conference, the preparation and planning for which Brankamp became
absorbed in and preoccupied with, resulting in the late filing of the Motion for Trial De Novo.
According to the Amended Affidavit, at 3:14 a.m. on February 28, 2023, Brankamp abruptly
awoke to the realization that the filing of the Motion for Trial De Novo had not been completed
(the Motion for Trial De Novo was still sitting in the Portal on his office desktop computer, which
Brankamp accessed remotely from his home at the time). After changing the date on the Motion
for Trial De Novo to reflect that it was no longer March 27, 2023, Brankamp then completed the
filing at 3:14 a.m. on February 28, 2023.
Brankamp annexed as an exhibit to the Amended Affidavit, evidence of his pre-paid
vacation indicating that the hotel room in West Virginia was booked at all times material for March
5, 2023 through March 10, 2023, as evidence of the impending prepaid vacation. Brankamp also
annexed as exhibits to the Amended Affidavit copies of Notices of some of the impending
litigation events scheduled just before and during the vacation, including the following: the
deposition of neurologist Mark L. Brody, M.D. on March 1, 2023; the deposition of expert Roman
Ramos in the Construction Defect Case on March 2, 2023; the full-day mediation in the
Construction Defect Case on March 6, 2023; a Case Management Conference in a wrongful death
case on March 7, 2023; the deposition of expert Miroslav Mladenovic in the Construction Defect
Case on March 7, 2023; the deposition of expert Miroslav Mladenovic in the Construction Defect
Case on March 8, 2023; the deposition of witness Timothy Burgess in the instant action on March
8, 2023; the deposition of Dan Tiplea in the Construction Defect Case on March 9, 2023; and the
deposition of expert Roman Ramos in the Construction Defect Case on March 10, 2023.
According to the Amended Affidavit, the three (3)-hour delay was caused by Brankamp’s
“absorption in, and distraction and preoccupation with, the above-referenced litigation obligations
and preparations for upcoming litigation events scheduled to occur during the vacation where [he
knew] from past experience internet connectivity can be spotty and of poor quality making [his]
preparations ahead of time all the more critical.” The Amended Affidavit further states, “the week-
long, pre-paid vacation was a very unique, irregular, and extremely unusual undertaking for
At the evidentiary hearing on June 30, 2023, Brankamp also testified that he had a deposition
of a plaintiff scheduled for March 6, 2023, and a special set hearing on a Motion for Summary
Judgment scheduled for March 13, 2023, the day after he was scheduled to return from the
vacation.
[Brankamp],” and he had “only taken one other vacation of that duration in the last fifteen (15)
years, due to litigation obligations.” Brankamp states, “[a]t all times material, [it] was not business
as usual, and [Brankamp] became unusually and extremely preoccupied with [the] serious
litigation and other events, which was what led to the delay.” The Amended Affidavit concludes
by stating, “the three-hour delay was an accident due to a confluence of major, high-dollar,
significant litigation events and obligations, with . . . [the] vacation.”
Deposition Testimony & Testimony at Evidentiary Hearing, Regarding Short-
Notice of Mediation Over Brankamp’s Objection & an Associate’s Work on Non-
Jury Trial in Separate Case
Furthermore, on June 13, 2023 and June 30, 2023, Brankamp provided sworn testimony
that the mediation in the $50 million Construction Defect Case was, on February 16, 2023, short-
noticed by another party to be held March 6, 2023, over Brankamp’s objection due to the conflict
with his vacation, which led Brankamp to file an Emergency Motion for Protective Order in the
Construction Defect Case on February 19, 2023. On February 21, 2023, Brankamp e-mailed a
copy of his Emergency Motion for Protective Order to the judge in the Construction Defect Case.
Brankamp testified that certain key parties in the Construction Defect Case insisted upon all
required attendees attending the mediation in person rather than by Zoom. In his Emergency
Motion for Protective Order, Brankamp raised the issues of his vacation and the other parties’
insistence upon in-person vs. Zoom attendance. According to Brankamp, on February 21, 2023,
in response to his Emergency Motion for Protective Order, the judge in the Construction Defect
Case nonetheless informed the parties in that case that the mediation was to go forward and proceed
on March 6, 2023, notwithstanding Brankamp’s vacation, but that the parties would be allowed to
attend the mediation via Zoom. (Brankamp Dep. Tr. at 8-9, 11-13, 73, 78-79, 81-82, 104-106; and
June 30, 2023 Hearing Tr. at 38-41).
Additionally, Brankamp testified that his associate attorney Mike Rubin (“Rubin”), who
would have normally assisted Brankamp with his workload during the subject period of time, was
required to prepare for a non-jury trial in a separate case, which trial was scheduled to and did
commence on March 13, 2023. Rubin worked almost exclusively on trial preparation for that
separate case during the entire month of February 2023 and through March 13, 2023, rather than
assist Brankamp. According to Brankamp’s testimony, that temporary loss of Rubin’s assistance
“made it exceedingly difficult when the mediation of the $50 million [Construction Defect Case]
was short-noticed over [Brankamp’s] objection” (June 30, 2023 Hearing Tr. at 51-52), and added
to the convergence of litigation events and vacation which preoccupied and distracted Brankamp
and led to the delay in the filing of HPC’s Motion for Trial De Novo. (Brankamp Dep. Tr. at 9,
21; and June 30, 2023 Hearing Tr. at 51-52).
Deposition Testimony & Testimony at Evidentiary Hearing, Regarding February
On June 13, 2023, Brankamp testified that at 1:18 p.m. on February 27, 2023, he wrote an
e-mail to Harold Lang, Esq. (“Lang”) (counsel for HPC’s excess carrier) stating,
Harold, hopefully you had a good weekend. Today is the deadline for the insured
Hooters of Port Charlotte to reject or except the arbitrator's decision/award against
Hooters . . . in the amount of $525,000. . . . the claims examiner from Origin
authorized us to reject the decision and file a motion for trial de novo, which we'll
do at close of business today. I'll let you forward this information to Allie [at
Everest]. Let us know if you have any questions.
(Brankamp Dep. Tr.at 10-11 [emphasis added]).
EXCUSABLE NEGLECT
Florida State Courts Have Looked to Federal Courts’ Interpretation of
Excusable Neglect and Prejudice & Excusable Neglect is Generally the Same
Notwithstanding Which Rule it is Analyzed Under
The standard for determining whether excusable neglect has been shown, is the same under
Florida Rule of Civil Procedure 1.090(b) and other Rules, as it is under Florida Rule of Civil
Procedure 1.540(b). Carter v. Lake County, 840 So.2d 1153, 1156-57 (Fla. 5 DCA 2003) (“We
can find no sound reason for giving the term ‘excusable neglect’ different interpretations
depending on the particular rule of civil procedure that is being applied.”).
Additionally, Florida courts have looked to federal courts’ interpretation to determine
whether excusable neglect exists. In Carter, the Fifth District explained,
We find support for our decision in the opinions rendered by the federal courts
interpreting Federal Rules of Civil Procedure 6(b) and 60(b). We find these
opinions persuasive because rule 1.090 is substantially the same as Federal Rule 6,
and rule 1.540 is substantially the same as Federal Rule 60. The Florida courts have
consistently held that ‘[f]ederal case law which construes a federal rule after which
a Florida rule is patterned may be considered in interpreting the Florida rule, as it
must be assumed that in adopting a rule identical to a federal rule, our supreme
court intended to achieve the same results that would obtain under the federal rule.’
Carter, 840 So.2d at 1157 (citations omitted) (emphasis added). Also according to the Fifth
District,
A leading federal case that discusses the application of the excusable neglect
standard under Federal Rules of Civil Procedure 6(b) and 60(b) is Pioneer
Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380,
113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) . . . . Specifically, the [Pioneer] Court held
that the determination of whether the failure to abide by a specified time limit
constitutes excusable neglect is in essence an equitable one which should take into
account all of the relevant circumstances, including prejudice to the other party, the
reason for the delay, the duration of the delay, and whether the movant acted in
good faith. at 395, 113 S.Ct. 1489. The [Pioneer] Court concluded that
excusable neglect ‘contemplate[s] that the courts would be permitted, where
appropriate, to accept late filings caused by inadvertence, mistake, or carelessness,
as well as by intervening circumstances beyond the party's control.’
Carter, 840 So.2d at 1157 (citing and quoting Pioneer, 507 U.S. at 388–89) (emphasis added).
The Eleventh Circuit Court of Appeals analyzed and followed upon Pioneer and its
progeny (i.e., Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th Cir.1996)) as follows:
The Supreme Court and this Court have recently clarified the test for “excusable
neglect.” In Pioneer Investment Services Co. v. Brunswick Associates Limited
, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Court held
that a creditor's filing of a proof of claim 20 days late constituted excusable neglect
under Federal Rule of Bankruptcy Procedure 9006(b)(1). Looking to other rules
for guidance, the Court stated that, “at least for purposes of Rule 60(b), ‘excusable
neglect’ is understood to encompass situations in which the failure to comply with
a filing deadline is attributable to negligence.” Id. at 394, 113 S.Ct. at 1497. The
Court explained that the determination of excusable neglect “is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party's
omission,” and identified four factors to guide courts in making that determination:
“the danger of prejudice to the [other party], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the movant acted in good
faith.” at 395, 113 S.Ct. at 1498. The Court found that in the case before it the
creditor had engaged in excusable neglect, because “the lack of any prejudice to the
debtor or to the interests of efficient judicial administration, combined with the
good faith of respondents and their counsel, weigh[ed] strongly in favor of
permitting the tardy claim.” at 398, 113 S.Ct. at 1499.
Three years later, this Court applied the Pioneer factors in Cheney v. Anchor Glass
Container Corp., 71 F.3d 848 (11th Cir.1996). In Cheney, the plaintiff exercised
his right to demand a trial de novo following an arbitration award, but filed his
request six days after the deadline had passed and three days after the district court
had entered judgment against him. See id. at 849. We held that the district court
had abused its discretion by refusing to set aside its judgment, because the Pioneer
factors weighed in Cheney's favor. See id. at 850. Noting that the Supreme Court
had “accorded primary importance to the absence of prejudice to the nonmoving
party and to the interest of efficient judicial administration in determining whether
the district court had abused its discretion,” we relied on the fact that Anchor Glass
could not show it had suffered any prejudice and we found the six-day delay had
no adverse impact on the district court. In addition, we explained that the delay
was caused by a miscommunication between two attorneys, which constituted
“negligence” and “simply an innocent oversight by counsel.” Finally, we
emphasized that there was no evidence Cheney had acted in bad faith. See id.
Pioneer and Cheney directly control the outcome of this case, and all four factors
weigh in favor of Walter's position. First, in its memorandum opposing Walter's
motion to set aside the dismissal, Blue Cross of Wisconsin admitted that it had not
suffered any prejudice from Walter's delay. . . .
Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d 1198, 1201-02 (11th Cir.1999)
(emphasis added).
Likewise, the Second District in Madill v. Rivercrest Community Assoc., Inc., 273 So.3d
1157, 1160 (Fla. 2 DCA 2019), cited and quoted approvingly Carter and Pioneer. Relying in
part upon Carter and Pioneer Madill court found,
it is troubling regardless of the extent of his actual involvement that an attorney
who was listed as counsel of record likely saw the JA's email but ‘glossed over it.’
. . . But in simply concluding that the attorney's conduct in this case was
‘inexcusable,’ the trial court failed to take all of the relevant circumstances into
account. See [Boudot v. Boudot, 925 So.2d 409, 415-16 (Fla. 5 DCA 2006)]. . . .
Moreover, Rivercrest Community Association, Inc. asserted no prejudice, Madill's
counsel filed the motions for fees and costs and for an enlargement of time
immediately upon realizing what had happened, and there is no indication of bad
faith. There's no question that the attorney's oversight was the result of careless
human error. But absent something more, that's exactly what excusable neglect is.
Madill, 273 So.3d at 1161 (emphasis added); see also, Boudot v. Boudot, 925 So.2d 409, 415-16
(Fla. 5 DCA 2006) (citing Carter and Pioneer) (“The determination of whether the failure to
abide by a specified time limit constitutes excusable neglect is in essence an equitable one which
should take into account all of the relevant circumstances, including prejudice to the other party,
the reason for the delay, the duration of the delay, and whether the movant acted in good faith.”)
Florida and Federal Courts Have Further Elaborated on Excusable Neglect
“Pursuant to Florida Rule of Civil Procedure 1.540(b), ‘the court may relieve a party or the
party's legal representative from final judgment, decree, order, or proceeding’ upon a showing of
‘mistake, inadvertence, surprise, or excusable neglect.’” Shah v. Transdermal Delivery Sols.
Corp., 266 So. 3d 215, 216-17 (Fla. 4th DCA 2019) (quoting Fla. R. Civ. P. 1.540(b)). “‘Excusable
neglect’ includes ‘inaction result[ing] from clerical or secretarial error, reasonable
misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.’”
Shah, 266 So. 3d at 217 (quoting Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th
DCA 1985)). “It is a gross abuse of discretion for a trial court to deny relief under 1.540(b) ‘upon
timely application accompanied by a reasonable and credible explanation’ for such inaction.”
Shah, 266 So. 3d at 217 (quoting Somero, 467 So.2d at 1106).
Regarding excusable neglect under Florida Rule of Civil Procedure 1.540(b)(1), the Fifth
District adds, “‘[t]he rule envisions an honest mistake made during the regular course of litigation
including those that result from oversight, neglect, or accident.’” Ocwen Loan Servicing, LLC v.
, 185 So.3d 627, 629 (Fla. 5 DCA 2016) (emphasis added) (quoting Paladin Props. v.
Family Inv. Enters., 952 So.2d 560, 562 (Fla. 2d DCA 2007)). “We liberally construe this rule in
favor of facilitating decisions on the merits.” Ocwen, 185 So.3d at 629 (citing J.J.K. Int'l, Inc. v.
, 985 So.2d 66, 68 (Fla. 4th DCA 2008)).
To determine whether there was excusable neglect, courts should consider the following
factors, among others: whether there was an adjudication of the issues on the merits; the length of
the delay; whether the judgment is for a considerable sum; whether “defense counsel was absorbed
in final preparations for two impending jury trials”; and whether defense counsel acted promptly
to rectify the situation. See, Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733, 737
(Fla. 1st DCA 1964) (emphasis added). In City of Ocala v. Heath, 518 So. 2d 325 (Fla. 5th DCA
1987), the illness of the attorney and adverse effects of his medication causing a default, were
determined to be excusable neglect and grounds for vacating or setting aside a judgment, decree,
or order pursuant to Florida Rule of Civil Procedure 1.540(b)(1). at 326. In Ledwith v. Storkan
2 F.R.D. 539 (D. Neb. 1942) – a case relied upon in part by Florida Inv. Enterprises, Inc. v.
Kentucky Co., 160 So. 2d 733, 736-37 (Fla. 1st DCA 1964), regarding the existence of excusable
neglect, and cited by Trawick, Fla. Prac. & Proc. § 27:3 (2022-2023 ed.) – the federal court held
that, “continuous preoccupation with an important trial” may suffice for excusable neglect.
Ledwith, 2 F.R.D. at 544.
“Excusable neglect is understood to encompass situations in which the failure to comply
with a filing deadline is attributable to negligence.’” Blake v. Enhanced Recovery Co., LLC, No.
3:10- -1178-J-37JBT, 2011 WL 3625594, at *1 (M.D. Fla. Aug. 17, 2011) (emphasis added)
Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d 1198, 1201 (11th Cir.1999)).
Prejudice
In discussing what is required to demonstrate “prejudice” as part of the determination of
whether excusable neglect exists, the court in Lacy v. Sitel Corp., 227 F.3d 290, 293 (5 Cir. 2000)
noted as follows:
There is no prejudice to the plaintiff where ‘the setting aside of the default has done
no harm to plaintiff except to require it to prove its case. It has decided nothing
against it except that it cannot continue to hold the sweeping [relief] it obtained ...
without a trial and by default. All that ... has [been] done is to give the defendants
their day in court.’ Thus, mere delay does not alone constitute prejudice. Rather,
‘the plaintiff must show that the delay will result in the loss of evidence, increased
difficulties in discovery, or greater opportunities for fraud and collusion.’
Berthelsen v. Kane, 907 F.2d 617, 621 (6 Cir. 1990)].
La , 227 F.3d at 293 (citation omitted) (emphasis added); see also, Davis v. Musler, 713 F.2d
907, 916 (2 Cir. 1983) (citation omitted).
Federal courts in Florida have followed Berthelsen, supra, as well, such as the court in
Proficient Auto, Inc. v. Auto Transp. Servs., Inc., No. 13-CIV-60945, 2013 WL 12383302, at *3
(S.D. Fla. Sept. 13, 2013), which states,
[S]etting aside the default would not prejudice Plaintiff. “‘To establish prejudice,
the plaintiff must show that the delay will result in the loss of evidence, increased
difficulties in discovery, or greater opportunities for fraud and collusion.’”
GuideOne Mut. Ins. Co. v. Iglesia Bautista Resurreccion, No. 11–20497–CIV,
2011 WL 3584212, at *3 (S.D. Fla. Aug. 12, 2011) (quoting Berthelsen v. Kane
907 F.2d 617, 621 (6th Cir. 1990)). Plaintiff argues only that Defendant may have
an opportunity to hide its funds if the default judgment is set aside and the writ of
garnishment is quashed. However, there is no indication that Defendant has
attempted—or is attempting—to act fraudulently or to conceal funds. Nor is there
any indication that Plaintiff would be unable to utilize appropriate litigation devices
to recover any due funds after an adjudication on the merits.
Proficient Auto, Inc., 2013 WL 12383302, at *3 (emphasis added); see also Wheeler v. Bayolo
Case No.: 5:16cv96, 2018 WL 935444 (N.D. Fla. Feb. 5, 2018) (citing Lacy, 227 F.3d at 293).
Further to the above, the court in Blake v. Enhanced Recovery Co., LLC, No. 3:10-
1178-J-37JBT, 2011 WL 3625594, at *1 (M.D. Fla. Aug. 17, 2011), acknowledged that, “‘the
absence of prejudice to the nonmoving party’ and ‘the interest of efficient judicial administration’
are to be accorded ‘primary importance,’” Blake, 2011 WL 3625594, at *1 (emphasis added)
Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir.1996)).”’
Blake is instructive and compelling as, even though the court determined that the reason
for the delay was a “‘misunderstanding of the law [which] cannot constitute excusable neglect,”
the court nonetheless continued its analysis and found that (i) there was prejudice, (ii) the three-
and-a-half-month delay was not too long, and (iii) the delaying party acted in good faith. Blake
2011 WL 3625594, at *2 (quoting Corwin v. Walt Disney Co., 475 F.3d 1239, 1255 (11th
Cir.2007). In spite of determining that a misunderstanding of the law was not excusable neglect,
the Blake court relied upon a lack of prejudice by a three-and-a-half-month delay in finding
excusable neglect. Blake, 2011 WL 3625594, at *2-3.
In other words, in Blake (relying in part upon Pioneer), the absence of prejudice
outweighed the absence of excusable neglect – which absence of prejudice enabled the court to
find excusable neglect – demonstrating the significance of the issue of prejudice to the
determination of excusable neglect.
“In applying Pioneer, the Eleventh Circuit has expressly stated that ‘the Supreme Court
accorded primary importance to the absence of prejudice to the nonmoving party and to the interest
of efficient judicial administration[.]’” In re Lett, Case No. 10-61451-BEM, 2023 WL 2780908
(Bankr. N.D. Ga. Apr. 4, 2023) (emphasis added) (quoting Cheney v. Anchor Glass Container
Corp., 71 F.3d 848, 850 (11th Cir. 1996); see also, Advanced Estimating System, Inc. v. Riney, 77
F.3d 1322 (11th Cir. 1996) (“Primary importance should be accorded to the absence of prejudice
. . . . To the extent that our past decisions interpreting excusable neglect apply an unduly strict
standard in conflict with Pioneer, they are no longer controlling precedent.”)
In fact, the First District, in a case involving a Rule 1.540(b) motion for relief from a
judgment, analyzed whether “substantial prejudice” existed. Florida Aviation Academy, Dewkat
Aviation, Inc. v. Charter Air Center, Inc., 449 So.2d 350, 353 (1984). In so doing, the court held
that depriving the non-moving party of the recovery of the entire amount sought is not substantial
prejudice. at 353 (Emphasis added).
Similarly, in discussing the significance of the absence of prejudice for a finding o
excusable neglect, the Eleventh Circuit in Connecticut State Dental Ass'n v. Anthem Health Plans,
Inc., 591 F.3d 1337, 1356-57 (11 Cir. 2009) noted as follows,
Turning to the Pioneer factors, we conclude that they all weigh in favor of granting
Plaintiffs relief. First, in spite of Anthem's arguments to the contrary, there is no
discernable prejudice to Anthem as a result of the delay. The delay was brief. . . .
Anthem contends that it is prejudiced because it expected to win the motions, which
would have concluded the litigation. But the inquiry is whether prejudice results
from the delay, not from having to continue to litigate the case. See Walter v. Blue
Cross & Blue Shield United of Wisc., 181 F.3d 1198, 1202 (noting that “Blue Cross
of Wisconsin admitted that it had not suffered any prejudice from Walter's delay”);
Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000) (“There is no prejudice to the
plaintiff where the setting aside of the default has done no harm to plaintiff except
to require it to prove its case.
Anthem, 591 F.3d at 1356-57 (emphasis added).
As another example, in Finkel Outdoor Products, Inc. v. Lasky, 529 So.2d 317 (Fla. 2
DCA 1988), the Second District pointed out that, “[t]he trial judge apparently found no excusable
neglect because there was no showing by appellant that it took any steps to defend except to rely
upon its liability carrier to defend.” at 318. Notwithstanding, the Second District reversed the
trial court’s decision, stating, “[w]e conclude that, under the facts of this case showing appellee
would suffer neither delay nor prejudice, the trial judge abused his discretion in failing to set aside
the default.” at 319. The absence of prejudice was critical.
FINDINGS & CONCLUSIONS
Plaintiff Will Not be Prejudiced by the Granting of HPC’s Amended Motion and
the Vacating of the Final Judgment.
HPC filed its Motion for Trial De Novo in the middle of the night less than 195 minutes
after the deadline. According to Plaintiff, if HPC’s Amended Motion is granted, it will be
prejudiced in that it already accepted the Arbitration Award as against the other tavern Defendants,
BWR North Port, LLC d/b/a Buffalo Wings And Rings ("BWR"), Atlanta Restaurant Partners,
LLC d/b/a TGI Fridays ("Atlanta"), and Jackmont Hospitality, Inc. d/b/a TGI Fridays ("Jackmont")
(Atlanta and Jackmont are collectively, “TGIF”). Plaintiff argues that the absence of BWR and
TGIF from this action will result in “empty chairs” at trial and Fabre defendants on the verdict
form. However, Plaintiff’s argument fails for a number of reasons.
First, Plaintiff ignores the fact that HPC had until midnight to file a Motion for Trial De
Novo. Plaintiff wrongly assumes that because HPC's counsel testified that he intended to file prior
5:00 p.m., that HPC's counsel could not have remembered to file sometime between 5:00 p.m. and
midnight. Had HPC’s counsel remembered and filed at the last minute, the Motion for Trial De
Novo would have been timely and Plaintiff would have had less than a minute to file their own
Motion for Trial De Novo to keep BWR and TGIF in the case.
Relatedly, prior to the midnight deadline, Plaintiff could not have known how long counsel
for HPC intended to wait prior to the deadline to file HPC's Motion for Trial De Novo and, thus,
Plaintiff could not have relied upon HPC to allow Plaintiff enough time to file Plaintiff's own
Motion as to BWR and TGIF. As noted above, had counsel for HPC remembered to file HPC's
Motion at 11:59 p.m. on February 27, 2023, which obviously could have happened and was
entirely plausible, Plaintiff would not have been in a position to file its own Motion for Trial De
Novo to keep BWR and TGIF in the case. Plaintiff relies upon an impermissible stacking of
inferences to attempt to demonstrate prejudice.
Second, to demonstrate prejudice, Plaintiff would have had to prove that the position which
it now argues it could have been in had events unfolded differently, would have been more
favorable for Plaintiff than the position Plaintiff will be in if HPC's Amended Motion is granted.
At the core of this argument is the assumption that Plaintiff will have less of a chance of recoveri
the same amount of money as the amount of the Final Judgment, if HPC’s Amended Motion is
granted. Plaintiff avers that "empty chairs" and Fabre defendants will decrease the likelihood of
Plaintiff obtaining a verdict against HPC in the amount of the Final Judgment. This concern about
a lower verdict, however, is predicated upon speculation and conjecture. Plaintiff cannot
demonstrate an actual prejudice or measurable increase in the likelihood of a lower verdict. For
example, the Arbitration Award itself mentions the fact that BWR and/or TGIF had pending, or
were contemplating, Motions for Summary Judgment that could be granted. In other words,
according to the Arbitration Award itself, BWR and TGIF might have been granted summary
judgment against Plaintiff had Plaintiff not accepted the Arbitration Award against them. As
another example, some of the evidence presented in HPC's "Meritorious Defenses" section of the
Amended Motion does not appear to have been considered at the Arbitration and is not addressed
in the Arbitration Award (e.g., evidence of the other driver's negligence – not Defendant Mark
Barcia's). In other words, had Plaintiff kept BWR and TGIF in the case, Plaintiff may have been
faced with the additional, unfavorable evidence and ended up with a worse result than the more
than $500,000 awarded to Plaintiff against BWR and TGIF.
Third, Plaintiff's need to litigate and prove its case against HPC if the Motion for Relief is
granted would not, in and of itself, amount to prejudice. See, Connecticut State Dental Ass'n v.
Anthem Health Plans, Inc., 591 F.3d 1337, 1356-57 (11th Cir. 2009); Lacy v. Sitel Corp., 227 F.3d
290, 293 (5th Cir. 2000). With Florida's abolition of joint and several liability, Plaintiff is required
to prove its case against HPC regardless of whether BWR and/or TGIF are named party Defendants
at the time of trial. HPC could never have been liable for BWR and/or TGIF's negligence, and
vice versa – neither BWR nor TGIF could have been liable for HPC. It is still unclear how an
"empty chair" in this case will prejudice Plaintiff. "Empty chairs" and potential Defendants,
are not automatically prejudicial, nor are they necessarily unfavorable for Plaintiff. Here, it ma
not be more favorable for HPC to be the "last man standing" at trial and without the presence of
BWR and TGIF.
Finally, there is no indication that HPC’s counsel’s delay or excusable neglect will result
in the required loss of evidence, increased difficulties in discovery, or greater opportunities for
fraud and collusion. See, Lacy, 227 F.3d at 293; Proficient Auto, Inc., 2013 WL 12383302, at *3.
For the reasons above, this Court concludes that neither Plaintiff nor Defendant Mark
Barcia will be prejudiced by the granting of the Amended Motion and vacation of the Final
Judgment.
The Reason for Counsel’s Delay Constitutes Excusable Neglect, the Length of
the Delay was Short and Insignificant, & There is No Evidence that Counsel
Acted in Bad Faith.
Whether “defense counsel was absorbed in final preparations for two impending jury trials”
is a factor as to whether the reason for the delay was excusable neglect. Florida Inv. Enterprises,
Inc., 160 So. 2d at 737. Likewise, “continuous preoccupation with an important trial” may suffice
for excusable neglect. Ledwith, 2 F.R.D. at 544. In the case at bar, the evidence shows that on
February 27, 2023, counsel for HPC fully intended and began preparations to file HPC’s Motion
for Trial De Novo prior to the close of business, when unfortunately he became preoccupied with
and absorbed in preparations for numerous impending expert depositions, a plaintiff’s deposition,
the deposition of another witness, a Case Management Conference in a wrongful death case, a
special set hearing on a Motion for Summary Judgment and, moreover, the short-noticed mediation
of a multi-million dollar Construction Defect Case, which were scheduled to take place right
before, during, and the day after counsel’s longstanding, pre-paid vacation. This Court finds that
collectively the impending depositions, mediation in the multi-million-dollar Construction Defect
Case, and the other depositions and litigation events, scheduled during and around counsel’s
vacation, was equivalent to and rose to the same level as one or more impending jury trials.
Given the short length of the delay (only approximately three hours), coupled with the time
of the delay (the middle of the night), the Court finds that the delay itself was particularly minor
and insignificant.
As for whether counsel acted in bad faith, there is no evidence of that. To the contrary,
counsel’s email of 1:18 p.m. on February 27, 2023, wherein he stated his intention to file the
Motion for Trial De Novo prior to close of business, evidenced his intention and desire not to wait
until the last minute in search of some tactical advantage.
For the reasons above, this Court concludes that the neglect of HPC's counsel was, under
all the circumstances, excusable, even if counsel was negligent.
The Potential Impact on These Judicial Proceedings Is Insignificant.
As for the potential impact on these judicial proceedings, the instant action is not currently
set for trial, there are no depositions or other litigation events currently scheduled, a significant
amount of discovery has already been conducted to date including numerous depositions, and there
does not appear to be an actual, recognizable negative impact on the proceedings if the Amended
Motion is granted. Vacating the Final Judgment against HPC would not necessarily do harm to
the interest of efficient judicial administration, another factor weighing in favor of HPC.
HPC has Demonstrated Meritorious Defenses.
According to the deposition testimony of Nicole Cimmino ("Cimmino"), who was a
passenger in the vehicle driven by Pierre Louis (“Louis”), Louis “pulled” in front of Defendant
Mark Barcia (“Barcia”) too soon and there was nothing Barcia could have done to avoid the subject
motor vehicle accident. (Cimmino Dep. Tr. at 30). Cimmino testified that Louis was negligent,
id., which is reflected in HPC’s Fourteenth Affirmative Defense predicated on Fabre v. Marin
623 So. 2d 1182 (Fla. 1992); Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.
1996), and their progeny.
Additionally, HPC has presented evidence that it did not know or have reason to believe
that Barcia was habitually addicted to the use of alcohol. For example, Michael Lauff (“Lauff”)
(Barcia’s co-worker) testified that he had never seen Barcia “act drunk at Hooters” in the past.
(Lauf Dep. Tr. at 20-21). Likewise, one of HPC’s employees, Samantha Monnier (“Monnier”),
testified that when Barcia visited Hooters in the past, “he was always respectful. I mean, never
had a problem with him. He never seemed to be drunk. He was always a good guy. Never had
any problems.” (Monnier Dep. Tr. at 16). Another HPC employee, Veronica Santiago
(“Santiago”), testified about Barcia, “I thought he was pretty chill, never got too loud honestly, not
that I recall and I worked pretty often.” (Santiago Dep. Tr. at 19-20). When asked whether Barcia
“appeared sober,” Santiago responded by answering, “[l]ike he just woke up. He seemed
completely normal.” (Santiago Dep. Tr. at 49).
In summary, there is significant evidence that HPC did not violate the exception to
Florida’s dram shop law, section 768.125, Florida Statutes, which HPC has asserted in its Tenth
Affirmative Defense. For these reasons, this Court concludes that HPC has meritorious defenses.
Based upon the foregoing, it is hereby
and ADJUDGED that the Amended Motion of Defendant Hooters of Port
Charlotte, Inc. for Relief From, And To Vacate, Final Judgment, is GRANTED in all respects, and
upon the effective date of the Final Judgment For Compensatory Damages And Taxable Costs As
To Hooters of Port Charlotte, Inc. entered in the above-styled, instant action, that Final Judgment
in favor of Plaintiff and against Hooters of Port Charlotte, Inc. is hereby vacated.
and in Chambers at Port Charlotte, Charlotte County, Florida.
HON. GEOFFREY GENTILE
Circuit Judge
Preview
Filing # 176997194 E-Filed 07/10/2023 09:39:39 AM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA VENISSA DRIGGERS, as Personal Representative CASE NO.: 21-000410-CA of the Estate of DAVID B. FLICK, Deceased, MARK BARCIA, HOOTERS OF PORT CHARLOTTE, INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS AND RINGS, ATLANTA RESTAURANT PARTNERS, LLC d/b/a TGI FRIDAYS, AND JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS, NOTICE OF FILING HOOTERS OF PORT CHARLOTTE, INC. (“HPC”), by and through its undersigned counsel, hereby gives notice of the filing of its proposed Order Granting HPC’s Amended Motion For Relief From, And To Vacate, the Final Judgment against HPC, a copy of which is attached hereto (the “Proposed Order”), though HPC reserves the right to amend and/or supplement the Proposed Order as may become necessary. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 10th day of July, 2023, a true and correct copy of the foregoing was filed with the Clerk by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal System on the attached Service List. CHUSID, KATZ & SPOSATO, LLP Counsel for Defendant Hooters of Port Charlotte, Inc. 5850 Coral Ridge Drive, Suite 201 Coral Springs, Florida 33076 Telephone: (954) 340-2200 By: /s/ Joshua W. Brankamp Mitchel Chusid, Esq. Florida Bar No.: 879282 HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 mchusid@cksattorneys.com Joshua Brankamp, Esq. Florida Bar No.: 31315 jbrankamp@cksattorneys.com HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 Randall L. Spivey, Esq. Andrew Abel, Esq. Spivey Law Firm, Personal Injury Attorneys, P.A. 13400 Parker Commons Boulevard Fort Myers, Florida 33912 Tel: 239-337-7483 Fax: 239-337-7484 randall@spiveylaw.com Andrew@SpiveyLaw.com T.R. Unice Jr., Esq. Jeff Jensen, Esq. Unice, Salzman, Jensen, P.A. 1815 Little Road Trinity, FL 34655 Tel: 727-723-3772 jjensen@unicesalzman.com trunice@unicesalzman.com HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 IN THE CIRCUIT COURT OF THE 20 JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA VENISSA DRIGGERS, as Personal Representative CASE NO.: 21-000410- of the Estate of DAVID B. FLICK, Deceased, Plaintiff, MARK BARCIA, HOOTERS OF PORT CHARLOTTE, INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS AND RINGS, ATLANTA RESTAURANT PARTNERS, LLC d/b/a TGI FRIDAYS, AND JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS, Defendants. ORDER GRANTING DEFENDANT HOOTERS OF PORT CHARLOTTE, INC.’S AMENDED MOTION FOR RELIEF FROM, AND TO VACATE, FINAL JUDGMENT This matter came before the Court upon the Amended Motion of Defendant Hooters of Port Charlotte, Inc. (“HPC”) for Relief From, And To Vacate, Final Judgment (the “Amended Motion”). After reviewing all materials submitted by the parties in support of and in opposition to the Motion, hearing the argument of counsel for the parties at the evidentiary hearing on June 30, 2023, and at the continued evidentiary hearing on July 10, 2023, and being otherwise fully advised in the premises, the Court orders that the Amended Motion is hereby GRANTED for the reasons stated herein. PROCEDURAL BACKGROUND On January 13, 2023, a Non-binding Arbitration was held in this matter. On February 3, 2023, the Arbitrator filed his Notice of Service of Arbitrator's Sealed Non-Binding Arbitration Findings and Award (the "Arbitration Award"), making February 27, 2023 the deadline for the filing of a Motion for Trial De Novo to reject the Arbitration Award. See, Fla.R.Civ.P. 1.820(h); Fla.R.Civ.P. 1.090(a); Fla.R.Gen.Prac.&Jud.Admin. 2.514(a)(1). Notwithstanding the deadline, HPC did not file its Motion for Trial De Novo until 3:14 a.m. on February 28, 2023, three hours and fourteen minutes after the deadline. At 8:59 a.m. on February 28, 2023, HPC filed a Motion For Relief From Judgment, Decree, Decision, Arbitration Award, And/Or Order, And For Extension Of Time (the “First Motion” [not to be confused with the subject Amended Motion]), seeking relief from any forthcoming judgment or Arbitration Award “related to or arising out of the Non-binding Arbitration.” At 2:15 p.m. on February 28, 2023, HPC filed an Affidavit In Support of the First Motion. At 4:19 p.m. on February 28, 2023, Plaintiff, Venissa Driggers (“Plaintiff”), as Personal Representative of the Estate of David B. Flick, Deceased, filed her Motion To Unseal Arbitration Award As To Defendants, Hooters Of Port Charlotte, Inc., et al., For Entry Of Final Judgment As To Defendants, Hooters Of Port Charlotte, Inc., et al. (the “Motion to Unseal”). On March 1, 2023, HPC filed its Supplemental Brief, Evidence, And Legal Authority In Support Of the First Motion. On March 3, 2023, this Court heard and denied the First Motion given that no judgment had yet been entered, following which the Court entered an Order on March 16, 2023, reflecting its denial of the First Motion. On April 5, 2023, the Court entered an Order granting Plaintiff’s Motion to Unseal and instructing Plaintiff to submit to the Court a proposed Final Judgment in Plaintiff’s favor against HPC in the total amount of $541,415.81. On April 10, 2023, the Court entered a Final Judgment For Compensatory Damages And Taxable Costs As To HPC in that amount (the “Final Judgment”). On April 11, 2023, HPC filed the subject Amended Motion seeking relief from and to vacate the Final Judgment, predicated upon the asserted excusable neglect of HPC’s counsel of record Joshua Brankamp (“Brankamp,” “counsel for HPC,” or “HPC’s counsel”). Annexed as an exhibit to the Amended Motion is the Sworn Amended Affidavit of Brankamp in support of the Amended Motion (the “Amended Affidavit”). On June 13, 2023, Plaintiff’s counsel, and counsel for Defendant Mark Barcia (“Barcia”), deposed Brankamp about his assertion of excusable neglect in connection with the delayed filing of the Motion for Trial De Novo, following which an evidentiary hearing was held on June 30, 2023, and a continued evidentiary on July 10, 2023. Brankamp gave additional sworn testimony at the initial evidentiary and continued evidentiary hearings. FACTUAL BACKGROUND Amended Affidavit According to Brankamp’s Amended Affidavit, from September 2022 through the period of in question, he was the primary attorney handling and responsible for HPC’s defense and it was his responsibility to ensure the filing of HPC’s Motion for Trial De Novo on February 27, 2023. Also according to the Amended Affidavit, on February 27, 2023, Brankamp was authorized and intended, and began, to formally file and serve HPC's Motion for Trial De Novo on February 27, 2023, and he uploaded the Motion for Trial De Novo into the Florida Courts E-filing Portal On April 17, 2023, the Court entered an Order finding, 1. The Court reviewed in Camera emails Bates Stamped 1-77, representing communications between Hooters, its carrier and counsel (2/3/23-2/27//23) related to the non-binding arbitration award and request for trial de novo. 2. The emails reflect that counsel for Hooters had authority to file a motion for trial de novo on February 27, 2023 by email sent at 10:26 a.m. (April 17, 2023 Order, ¶¶1-2). See also Brankamp Dep. Tr. at 38-41, 50, and June 30, 2023 Hearing Tr. at 43, 64-65, 72, regarding Brankamp’s receipt of authorization at 10:26 a.m. on February 27, 2023, to reject the Arbitration Award and file HPC’s Motion for Trial De Novo. (the "Portal") during the early afternoon of February 27, 2023, intending to complete the filing prior to close of business. According to the Amended Affidavit, Brankamp then accidentally and inadvertently failed to complete the submission/filing process in the Portal due to becoming distracted, absorbed and preoccupied with other serious litigation matters and obligations and litigation/work-related preparations for a longstanding, pre-paid, week-long, out-of-state, family vacation which was scheduled to commence early on the morning of March 4, 2023. The Amended Affidavit states that Brankamp was scheduled to begin driving his family from South Florida to West Virginia on the morning of March 4, 2023, only to return to South Florida on or about March 12, 2023. Notwithstanding the vacation, Brankamp “had numerous important, weighty, significant litigation events and obligations scheduled from February 28, 2023 through the end of the vacation,” which he had to prepare for and prepare other attorneys to handle. According to the Amended Affidavit, the litigation matters included, but were not limited to, (i) an important mediation on March 6, 2023, for a separate lawsuit where damages were alleged to be more than $50 million and where the trial was scheduled to begin in May 2023 (the “Construction Defect Case”), (ii) numerous depositions of experts, (iii) a Calendar Call, and (iv) a Case Management Conference, the preparation and planning for which Brankamp became absorbed in and preoccupied with, resulting in the late filing of the Motion for Trial De Novo. According to the Amended Affidavit, at 3:14 a.m. on February 28, 2023, Brankamp abruptly awoke to the realization that the filing of the Motion for Trial De Novo had not been completed (the Motion for Trial De Novo was still sitting in the Portal on his office desktop computer, which Brankamp accessed remotely from his home at the time). After changing the date on the Motion for Trial De Novo to reflect that it was no longer March 27, 2023, Brankamp then completed the filing at 3:14 a.m. on February 28, 2023. Brankamp annexed as an exhibit to the Amended Affidavit, evidence of his pre-paid vacation indicating that the hotel room in West Virginia was booked at all times material for March 5, 2023 through March 10, 2023, as evidence of the impending prepaid vacation. Brankamp also annexed as exhibits to the Amended Affidavit copies of Notices of some of the impending litigation events scheduled just before and during the vacation, including the following: the deposition of neurologist Mark L. Brody, M.D. on March 1, 2023; the deposition of expert Roman Ramos in the Construction Defect Case on March 2, 2023; the full-day mediation in the Construction Defect Case on March 6, 2023; a Case Management Conference in a wrongful death case on March 7, 2023; the deposition of expert Miroslav Mladenovic in the Construction Defect Case on March 7, 2023; the deposition of expert Miroslav Mladenovic in the Construction Defect Case on March 8, 2023; the deposition of witness Timothy Burgess in the instant action on March 8, 2023; the deposition of Dan Tiplea in the Construction Defect Case on March 9, 2023; and the deposition of expert Roman Ramos in the Construction Defect Case on March 10, 2023. According to the Amended Affidavit, the three (3)-hour delay was caused by Brankamp’s “absorption in, and distraction and preoccupation with, the above-referenced litigation obligations and preparations for upcoming litigation events scheduled to occur during the vacation where [he knew] from past experience internet connectivity can be spotty and of poor quality making [his] preparations ahead of time all the more critical.” The Amended Affidavit further states, “the week- long, pre-paid vacation was a very unique, irregular, and extremely unusual undertaking for At the evidentiary hearing on June 30, 2023, Brankamp also testified that he had a deposition of a plaintiff scheduled for March 6, 2023, and a special set hearing on a Motion for Summary Judgment scheduled for March 13, 2023, the day after he was scheduled to return from the vacation. [Brankamp],” and he had “only taken one other vacation of that duration in the last fifteen (15) years, due to litigation obligations.” Brankamp states, “[a]t all times material, [it] was not business as usual, and [Brankamp] became unusually and extremely preoccupied with [the] serious litigation and other events, which was what led to the delay.” The Amended Affidavit concludes by stating, “the three-hour delay was an accident due to a confluence of major, high-dollar, significant litigation events and obligations, with . . . [the] vacation.” Deposition Testimony & Testimony at Evidentiary Hearing, Regarding Short- Notice of Mediation Over Brankamp’s Objection & an Associate’s Work on Non- Jury Trial in Separate Case Furthermore, on June 13, 2023 and June 30, 2023, Brankamp provided sworn testimony that the mediation in the $50 million Construction Defect Case was, on February 16, 2023, short- noticed by another party to be held March 6, 2023, over Brankamp’s objection due to the conflict with his vacation, which led Brankamp to file an Emergency Motion for Protective Order in the Construction Defect Case on February 19, 2023. On February 21, 2023, Brankamp e-mailed a copy of his Emergency Motion for Protective Order to the judge in the Construction Defect Case. Brankamp testified that certain key parties in the Construction Defect Case insisted upon all required attendees attending the mediation in person rather than by Zoom. In his Emergency Motion for Protective Order, Brankamp raised the issues of his vacation and the other parties’ insistence upon in-person vs. Zoom attendance. According to Brankamp, on February 21, 2023, in response to his Emergency Motion for Protective Order, the judge in the Construction Defect Case nonetheless informed the parties in that case that the mediation was to go forward and proceed on March 6, 2023, notwithstanding Brankamp’s vacation, but that the parties would be allowed to attend the mediation via Zoom. (Brankamp Dep. Tr. at 8-9, 11-13, 73, 78-79, 81-82, 104-106; and June 30, 2023 Hearing Tr. at 38-41). Additionally, Brankamp testified that his associate attorney Mike Rubin (“Rubin”), who would have normally assisted Brankamp with his workload during the subject period of time, was required to prepare for a non-jury trial in a separate case, which trial was scheduled to and did commence on March 13, 2023. Rubin worked almost exclusively on trial preparation for that separate case during the entire month of February 2023 and through March 13, 2023, rather than assist Brankamp. According to Brankamp’s testimony, that temporary loss of Rubin’s assistance “made it exceedingly difficult when the mediation of the $50 million [Construction Defect Case] was short-noticed over [Brankamp’s] objection” (June 30, 2023 Hearing Tr. at 51-52), and added to the convergence of litigation events and vacation which preoccupied and distracted Brankamp and led to the delay in the filing of HPC’s Motion for Trial De Novo. (Brankamp Dep. Tr. at 9, 21; and June 30, 2023 Hearing Tr. at 51-52). Deposition Testimony & Testimony at Evidentiary Hearing, Regarding February On June 13, 2023, Brankamp testified that at 1:18 p.m. on February 27, 2023, he wrote an e-mail to Harold Lang, Esq. (“Lang”) (counsel for HPC’s excess carrier) stating, Harold, hopefully you had a good weekend. Today is the deadline for the insured Hooters of Port Charlotte to reject or except the arbitrator's decision/award against Hooters . . . in the amount of $525,000. . . . the claims examiner from Origin authorized us to reject the decision and file a motion for trial de novo, which we'll do at close of business today. I'll let you forward this information to Allie [at Everest]. Let us know if you have any questions. (Brankamp Dep. Tr.at 10-11 [emphasis added]). EXCUSABLE NEGLECT Florida State Courts Have Looked to Federal Courts’ Interpretation of Excusable Neglect and Prejudice & Excusable Neglect is Generally the Same Notwithstanding Which Rule it is Analyzed Under The standard for determining whether excusable neglect has been shown, is the same under Florida Rule of Civil Procedure 1.090(b) and other Rules, as it is under Florida Rule of Civil Procedure 1.540(b). Carter v. Lake County, 840 So.2d 1153, 1156-57 (Fla. 5 DCA 2003) (“We can find no sound reason for giving the term ‘excusable neglect’ different interpretations depending on the particular rule of civil procedure that is being applied.”). Additionally, Florida courts have looked to federal courts’ interpretation to determine whether excusable neglect exists. In Carter, the Fifth District explained, We find support for our decision in the opinions rendered by the federal courts interpreting Federal Rules of Civil Procedure 6(b) and 60(b). We find these opinions persuasive because rule 1.090 is substantially the same as Federal Rule 6, and rule 1.540 is substantially the same as Federal Rule 60. The Florida courts have consistently held that ‘[f]ederal case law which construes a federal rule after which a Florida rule is patterned may be considered in interpreting the Florida rule, as it must be assumed that in adopting a rule identical to a federal rule, our supreme court intended to achieve the same results that would obtain under the federal rule.’ Carter, 840 So.2d at 1157 (citations omitted) (emphasis added). Also according to the Fifth District, A leading federal case that discusses the application of the excusable neglect standard under Federal Rules of Civil Procedure 6(b) and 60(b) is Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) . . . . Specifically, the [Pioneer] Court held that the determination of whether the failure to abide by a specified time limit constitutes excusable neglect is in essence an equitable one which should take into account all of the relevant circumstances, including prejudice to the other party, the reason for the delay, the duration of the delay, and whether the movant acted in good faith. at 395, 113 S.Ct. 1489. The [Pioneer] Court concluded that excusable neglect ‘contemplate[s] that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control.’ Carter, 840 So.2d at 1157 (citing and quoting Pioneer, 507 U.S. at 388–89) (emphasis added). The Eleventh Circuit Court of Appeals analyzed and followed upon Pioneer and its progeny (i.e., Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th Cir.1996)) as follows: The Supreme Court and this Court have recently clarified the test for “excusable neglect.” In Pioneer Investment Services Co. v. Brunswick Associates Limited , 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Court held that a creditor's filing of a proof of claim 20 days late constituted excusable neglect under Federal Rule of Bankruptcy Procedure 9006(b)(1). Looking to other rules for guidance, the Court stated that, “at least for purposes of Rule 60(b), ‘excusable neglect’ is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” Id. at 394, 113 S.Ct. at 1497. The Court explained that the determination of excusable neglect “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission,” and identified four factors to guide courts in making that determination: “the danger of prejudice to the [other party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” at 395, 113 S.Ct. at 1498. The Court found that in the case before it the creditor had engaged in excusable neglect, because “the lack of any prejudice to the debtor or to the interests of efficient judicial administration, combined with the good faith of respondents and their counsel, weigh[ed] strongly in favor of permitting the tardy claim.” at 398, 113 S.Ct. at 1499. Three years later, this Court applied the Pioneer factors in Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th Cir.1996). In Cheney, the plaintiff exercised his right to demand a trial de novo following an arbitration award, but filed his request six days after the deadline had passed and three days after the district court had entered judgment against him. See id. at 849. We held that the district court had abused its discretion by refusing to set aside its judgment, because the Pioneer factors weighed in Cheney's favor. See id. at 850. Noting that the Supreme Court had “accorded primary importance to the absence of prejudice to the nonmoving party and to the interest of efficient judicial administration in determining whether the district court had abused its discretion,” we relied on the fact that Anchor Glass could not show it had suffered any prejudice and we found the six-day delay had no adverse impact on the district court. In addition, we explained that the delay was caused by a miscommunication between two attorneys, which constituted “negligence” and “simply an innocent oversight by counsel.” Finally, we emphasized that there was no evidence Cheney had acted in bad faith. See id. Pioneer and Cheney directly control the outcome of this case, and all four factors weigh in favor of Walter's position. First, in its memorandum opposing Walter's motion to set aside the dismissal, Blue Cross of Wisconsin admitted that it had not suffered any prejudice from Walter's delay. . . . Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d 1198, 1201-02 (11th Cir.1999) (emphasis added). Likewise, the Second District in Madill v. Rivercrest Community Assoc., Inc., 273 So.3d 1157, 1160 (Fla. 2 DCA 2019), cited and quoted approvingly Carter and Pioneer. Relying in part upon Carter and Pioneer Madill court found, it is troubling regardless of the extent of his actual involvement that an attorney who was listed as counsel of record likely saw the JA's email but ‘glossed over it.’ . . . But in simply concluding that the attorney's conduct in this case was ‘inexcusable,’ the trial court failed to take all of the relevant circumstances into account. See [Boudot v. Boudot, 925 So.2d 409, 415-16 (Fla. 5 DCA 2006)]. . . . Moreover, Rivercrest Community Association, Inc. asserted no prejudice, Madill's counsel filed the motions for fees and costs and for an enlargement of time immediately upon realizing what had happened, and there is no indication of bad faith. There's no question that the attorney's oversight was the result of careless human error. But absent something more, that's exactly what excusable neglect is. Madill, 273 So.3d at 1161 (emphasis added); see also, Boudot v. Boudot, 925 So.2d 409, 415-16 (Fla. 5 DCA 2006) (citing Carter and Pioneer) (“The determination of whether the failure to abide by a specified time limit constitutes excusable neglect is in essence an equitable one which should take into account all of the relevant circumstances, including prejudice to the other party, the reason for the delay, the duration of the delay, and whether the movant acted in good faith.”) Florida and Federal Courts Have Further Elaborated on Excusable Neglect “Pursuant to Florida Rule of Civil Procedure 1.540(b), ‘the court may relieve a party or the party's legal representative from final judgment, decree, order, or proceeding’ upon a showing of ‘mistake, inadvertence, surprise, or excusable neglect.’” Shah v. Transdermal Delivery Sols. Corp., 266 So. 3d 215, 216-17 (Fla. 4th DCA 2019) (quoting Fla. R. Civ. P. 1.540(b)). “‘Excusable neglect’ includes ‘inaction result[ing] from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.’” Shah, 266 So. 3d at 217 (quoting Somero v. Hendry Gen. Hosp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985)). “It is a gross abuse of discretion for a trial court to deny relief under 1.540(b) ‘upon timely application accompanied by a reasonable and credible explanation’ for such inaction.” Shah, 266 So. 3d at 217 (quoting Somero, 467 So.2d at 1106). Regarding excusable neglect under Florida Rule of Civil Procedure 1.540(b)(1), the Fifth District adds, “‘[t]he rule envisions an honest mistake made during the regular course of litigation including those that result from oversight, neglect, or accident.’” Ocwen Loan Servicing, LLC v. , 185 So.3d 627, 629 (Fla. 5 DCA 2016) (emphasis added) (quoting Paladin Props. v. Family Inv. Enters., 952 So.2d 560, 562 (Fla. 2d DCA 2007)). “We liberally construe this rule in favor of facilitating decisions on the merits.” Ocwen, 185 So.3d at 629 (citing J.J.K. Int'l, Inc. v. , 985 So.2d 66, 68 (Fla. 4th DCA 2008)). To determine whether there was excusable neglect, courts should consider the following factors, among others: whether there was an adjudication of the issues on the merits; the length of the delay; whether the judgment is for a considerable sum; whether “defense counsel was absorbed in final preparations for two impending jury trials”; and whether defense counsel acted promptly to rectify the situation. See, Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733, 737 (Fla. 1st DCA 1964) (emphasis added). In City of Ocala v. Heath, 518 So. 2d 325 (Fla. 5th DCA 1987), the illness of the attorney and adverse effects of his medication causing a default, were determined to be excusable neglect and grounds for vacating or setting aside a judgment, decree, or order pursuant to Florida Rule of Civil Procedure 1.540(b)(1). at 326. In Ledwith v. Storkan 2 F.R.D. 539 (D. Neb. 1942) – a case relied upon in part by Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733, 736-37 (Fla. 1st DCA 1964), regarding the existence of excusable neglect, and cited by Trawick, Fla. Prac. & Proc. § 27:3 (2022-2023 ed.) – the federal court held that, “continuous preoccupation with an important trial” may suffice for excusable neglect. Ledwith, 2 F.R.D. at 544. “Excusable neglect is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.’” Blake v. Enhanced Recovery Co., LLC, No. 3:10- -1178-J-37JBT, 2011 WL 3625594, at *1 (M.D. Fla. Aug. 17, 2011) (emphasis added) Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d 1198, 1201 (11th Cir.1999)). Prejudice In discussing what is required to demonstrate “prejudice” as part of the determination of whether excusable neglect exists, the court in Lacy v. Sitel Corp., 227 F.3d 290, 293 (5 Cir. 2000) noted as follows: There is no prejudice to the plaintiff where ‘the setting aside of the default has done no harm to plaintiff except to require it to prove its case. It has decided nothing against it except that it cannot continue to hold the sweeping [relief] it obtained ... without a trial and by default. All that ... has [been] done is to give the defendants their day in court.’ Thus, mere delay does not alone constitute prejudice. Rather, ‘the plaintiff must show that the delay will result in the loss of evidence, increased difficulties in discovery, or greater opportunities for fraud and collusion.’ Berthelsen v. Kane, 907 F.2d 617, 621 (6 Cir. 1990)]. La , 227 F.3d at 293 (citation omitted) (emphasis added); see also, Davis v. Musler, 713 F.2d 907, 916 (2 Cir. 1983) (citation omitted). Federal courts in Florida have followed Berthelsen, supra, as well, such as the court in Proficient Auto, Inc. v. Auto Transp. Servs., Inc., No. 13-CIV-60945, 2013 WL 12383302, at *3 (S.D. Fla. Sept. 13, 2013), which states, [S]etting aside the default would not prejudice Plaintiff. “‘To establish prejudice, the plaintiff must show that the delay will result in the loss of evidence, increased difficulties in discovery, or greater opportunities for fraud and collusion.’” GuideOne Mut. Ins. Co. v. Iglesia Bautista Resurreccion, No. 11–20497–CIV, 2011 WL 3584212, at *3 (S.D. Fla. Aug. 12, 2011) (quoting Berthelsen v. Kane 907 F.2d 617, 621 (6th Cir. 1990)). Plaintiff argues only that Defendant may have an opportunity to hide its funds if the default judgment is set aside and the writ of garnishment is quashed. However, there is no indication that Defendant has attempted—or is attempting—to act fraudulently or to conceal funds. Nor is there any indication that Plaintiff would be unable to utilize appropriate litigation devices to recover any due funds after an adjudication on the merits. Proficient Auto, Inc., 2013 WL 12383302, at *3 (emphasis added); see also Wheeler v. Bayolo Case No.: 5:16cv96, 2018 WL 935444 (N.D. Fla. Feb. 5, 2018) (citing Lacy, 227 F.3d at 293). Further to the above, the court in Blake v. Enhanced Recovery Co., LLC, No. 3:10- 1178-J-37JBT, 2011 WL 3625594, at *1 (M.D. Fla. Aug. 17, 2011), acknowledged that, “‘the absence of prejudice to the nonmoving party’ and ‘the interest of efficient judicial administration’ are to be accorded ‘primary importance,’” Blake, 2011 WL 3625594, at *1 (emphasis added) Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir.1996)).”’ Blake is instructive and compelling as, even though the court determined that the reason for the delay was a “‘misunderstanding of the law [which] cannot constitute excusable neglect,” the court nonetheless continued its analysis and found that (i) there was prejudice, (ii) the three- and-a-half-month delay was not too long, and (iii) the delaying party acted in good faith. Blake 2011 WL 3625594, at *2 (quoting Corwin v. Walt Disney Co., 475 F.3d 1239, 1255 (11th Cir.2007). In spite of determining that a misunderstanding of the law was not excusable neglect, the Blake court relied upon a lack of prejudice by a three-and-a-half-month delay in finding excusable neglect. Blake, 2011 WL 3625594, at *2-3. In other words, in Blake (relying in part upon Pioneer), the absence of prejudice outweighed the absence of excusable neglect – which absence of prejudice enabled the court to find excusable neglect – demonstrating the significance of the issue of prejudice to the determination of excusable neglect. “In applying Pioneer, the Eleventh Circuit has expressly stated that ‘the Supreme Court accorded primary importance to the absence of prejudice to the nonmoving party and to the interest of efficient judicial administration[.]’” In re Lett, Case No. 10-61451-BEM, 2023 WL 2780908 (Bankr. N.D. Ga. Apr. 4, 2023) (emphasis added) (quoting Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996); see also, Advanced Estimating System, Inc. v. Riney, 77 F.3d 1322 (11th Cir. 1996) (“Primary importance should be accorded to the absence of prejudice . . . . To the extent that our past decisions interpreting excusable neglect apply an unduly strict standard in conflict with Pioneer, they are no longer controlling precedent.”) In fact, the First District, in a case involving a Rule 1.540(b) motion for relief from a judgment, analyzed whether “substantial prejudice” existed. Florida Aviation Academy, Dewkat Aviation, Inc. v. Charter Air Center, Inc., 449 So.2d 350, 353 (1984). In so doing, the court held that depriving the non-moving party of the recovery of the entire amount sought is not substantial prejudice. at 353 (Emphasis added). Similarly, in discussing the significance of the absence of prejudice for a finding o excusable neglect, the Eleventh Circuit in Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1356-57 (11 Cir. 2009) noted as follows, Turning to the Pioneer factors, we conclude that they all weigh in favor of granting Plaintiffs relief. First, in spite of Anthem's arguments to the contrary, there is no discernable prejudice to Anthem as a result of the delay. The delay was brief. . . . Anthem contends that it is prejudiced because it expected to win the motions, which would have concluded the litigation. But the inquiry is whether prejudice results from the delay, not from having to continue to litigate the case. See Walter v. Blue Cross & Blue Shield United of Wisc., 181 F.3d 1198, 1202 (noting that “Blue Cross of Wisconsin admitted that it had not suffered any prejudice from Walter's delay”); Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000) (“There is no prejudice to the plaintiff where the setting aside of the default has done no harm to plaintiff except to require it to prove its case. Anthem, 591 F.3d at 1356-57 (emphasis added). As another example, in Finkel Outdoor Products, Inc. v. Lasky, 529 So.2d 317 (Fla. 2 DCA 1988), the Second District pointed out that, “[t]he trial judge apparently found no excusable neglect because there was no showing by appellant that it took any steps to defend except to rely upon its liability carrier to defend.” at 318. Notwithstanding, the Second District reversed the trial court’s decision, stating, “[w]e conclude that, under the facts of this case showing appellee would suffer neither delay nor prejudice, the trial judge abused his discretion in failing to set aside the default.” at 319. The absence of prejudice was critical. FINDINGS & CONCLUSIONS Plaintiff Will Not be Prejudiced by the Granting of HPC’s Amended Motion and the Vacating of the Final Judgment. HPC filed its Motion for Trial De Novo in the middle of the night less than 195 minutes after the deadline. According to Plaintiff, if HPC’s Amended Motion is granted, it will be prejudiced in that it already accepted the Arbitration Award as against the other tavern Defendants, BWR North Port, LLC d/b/a Buffalo Wings And Rings ("BWR"), Atlanta Restaurant Partners, LLC d/b/a TGI Fridays ("Atlanta"), and Jackmont Hospitality, Inc. d/b/a TGI Fridays ("Jackmont") (Atlanta and Jackmont are collectively, “TGIF”). Plaintiff argues that the absence of BWR and TGIF from this action will result in “empty chairs” at trial and Fabre defendants on the verdict form. However, Plaintiff’s argument fails for a number of reasons. First, Plaintiff ignores the fact that HPC had until midnight to file a Motion for Trial De Novo. Plaintiff wrongly assumes that because HPC's counsel testified that he intended to file prior 5:00 p.m., that HPC's counsel could not have remembered to file sometime between 5:00 p.m. and midnight. Had HPC’s counsel remembered and filed at the last minute, the Motion for Trial De Novo would have been timely and Plaintiff would have had less than a minute to file their own Motion for Trial De Novo to keep BWR and TGIF in the case. Relatedly, prior to the midnight deadline, Plaintiff could not have known how long counsel for HPC intended to wait prior to the deadline to file HPC's Motion for Trial De Novo and, thus, Plaintiff could not have relied upon HPC to allow Plaintiff enough time to file Plaintiff's own Motion as to BWR and TGIF. As noted above, had counsel for HPC remembered to file HPC's Motion at 11:59 p.m. on February 27, 2023, which obviously could have happened and was entirely plausible, Plaintiff would not have been in a position to file its own Motion for Trial De Novo to keep BWR and TGIF in the case. Plaintiff relies upon an impermissible stacking of inferences to attempt to demonstrate prejudice. Second, to demonstrate prejudice, Plaintiff would have had to prove that the position which it now argues it could have been in had events unfolded differently, would have been more favorable for Plaintiff than the position Plaintiff will be in if HPC's Amended Motion is granted. At the core of this argument is the assumption that Plaintiff will have less of a chance of recoveri the same amount of money as the amount of the Final Judgment, if HPC’s Amended Motion is granted. Plaintiff avers that "empty chairs" and Fabre defendants will decrease the likelihood of Plaintiff obtaining a verdict against HPC in the amount of the Final Judgment. This concern about a lower verdict, however, is predicated upon speculation and conjecture. Plaintiff cannot demonstrate an actual prejudice or measurable increase in the likelihood of a lower verdict. For example, the Arbitration Award itself mentions the fact that BWR and/or TGIF had pending, or were contemplating, Motions for Summary Judgment that could be granted. In other words, according to the Arbitration Award itself, BWR and TGIF might have been granted summary judgment against Plaintiff had Plaintiff not accepted the Arbitration Award against them. As another example, some of the evidence presented in HPC's "Meritorious Defenses" section of the Amended Motion does not appear to have been considered at the Arbitration and is not addressed in the Arbitration Award (e.g., evidence of the other driver's negligence – not Defendant Mark Barcia's). In other words, had Plaintiff kept BWR and TGIF in the case, Plaintiff may have been faced with the additional, unfavorable evidence and ended up with a worse result than the more than $500,000 awarded to Plaintiff against BWR and TGIF. Third, Plaintiff's need to litigate and prove its case against HPC if the Motion for Relief is granted would not, in and of itself, amount to prejudice. See, Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1356-57 (11th Cir. 2009); Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000). With Florida's abolition of joint and several liability, Plaintiff is required to prove its case against HPC regardless of whether BWR and/or TGIF are named party Defendants at the time of trial. HPC could never have been liable for BWR and/or TGIF's negligence, and vice versa – neither BWR nor TGIF could have been liable for HPC. It is still unclear how an "empty chair" in this case will prejudice Plaintiff. "Empty chairs" and potential Defendants, are not automatically prejudicial, nor are they necessarily unfavorable for Plaintiff. Here, it ma not be more favorable for HPC to be the "last man standing" at trial and without the presence of BWR and TGIF. Finally, there is no indication that HPC’s counsel’s delay or excusable neglect will result in the required loss of evidence, increased difficulties in discovery, or greater opportunities for fraud and collusion. See, Lacy, 227 F.3d at 293; Proficient Auto, Inc., 2013 WL 12383302, at *3. For the reasons above, this Court concludes that neither Plaintiff nor Defendant Mark Barcia will be prejudiced by the granting of the Amended Motion and vacation of the Final Judgment. The Reason for Counsel’s Delay Constitutes Excusable Neglect, the Length of the Delay was Short and Insignificant, & There is No Evidence that Counsel Acted in Bad Faith. Whether “defense counsel was absorbed in final preparations for two impending jury trials” is a factor as to whether the reason for the delay was excusable neglect. Florida Inv. Enterprises, Inc., 160 So. 2d at 737. Likewise, “continuous preoccupation with an important trial” may suffice for excusable neglect. Ledwith, 2 F.R.D. at 544. In the case at bar, the evidence shows that on February 27, 2023, counsel for HPC fully intended and began preparations to file HPC’s Motion for Trial De Novo prior to the close of business, when unfortunately he became preoccupied with and absorbed in preparations for numerous impending expert depositions, a plaintiff’s deposition, the deposition of another witness, a Case Management Conference in a wrongful death case, a special set hearing on a Motion for Summary Judgment and, moreover, the short-noticed mediation of a multi-million dollar Construction Defect Case, which were scheduled to take place right before, during, and the day after counsel’s longstanding, pre-paid vacation. This Court finds that collectively the impending depositions, mediation in the multi-million-dollar Construction Defect Case, and the other depositions and litigation events, scheduled during and around counsel’s vacation, was equivalent to and rose to the same level as one or more impending jury trials. Given the short length of the delay (only approximately three hours), coupled with the time of the delay (the middle of the night), the Court finds that the delay itself was particularly minor and insignificant. As for whether counsel acted in bad faith, there is no evidence of that. To the contrary, counsel’s email of 1:18 p.m. on February 27, 2023, wherein he stated his intention to file the Motion for Trial De Novo prior to close of business, evidenced his intention and desire not to wait until the last minute in search of some tactical advantage. For the reasons above, this Court concludes that the neglect of HPC's counsel was, under all the circumstances, excusable, even if counsel was negligent. The Potential Impact on These Judicial Proceedings Is Insignificant. As for the potential impact on these judicial proceedings, the instant action is not currently set for trial, there are no depositions or other litigation events currently scheduled, a significant amount of discovery has already been conducted to date including numerous depositions, and there does not appear to be an actual, recognizable negative impact on the proceedings if the Amended Motion is granted. Vacating the Final Judgment against HPC would not necessarily do harm to the interest of efficient judicial administration, another factor weighing in favor of HPC. HPC has Demonstrated Meritorious Defenses. According to the deposition testimony of Nicole Cimmino ("Cimmino"), who was a passenger in the vehicle driven by Pierre Louis (“Louis”), Louis “pulled” in front of Defendant Mark Barcia (“Barcia”) too soon and there was nothing Barcia could have done to avoid the subject motor vehicle accident. (Cimmino Dep. Tr. at 30). Cimmino testified that Louis was negligent, id., which is reflected in HPC’s Fourteenth Affirmative Defense predicated on Fabre v. Marin 623 So. 2d 1182 (Fla. 1992); Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996), and their progeny. Additionally, HPC has presented evidence that it did not know or have reason to believe that Barcia was habitually addicted to the use of alcohol. For example, Michael Lauff (“Lauff”) (Barcia’s co-worker) testified that he had never seen Barcia “act drunk at Hooters” in the past. (Lauf Dep. Tr. at 20-21). Likewise, one of HPC’s employees, Samantha Monnier (“Monnier”), testified that when Barcia visited Hooters in the past, “he was always respectful. I mean, never had a problem with him. He never seemed to be drunk. He was always a good guy. Never had any problems.” (Monnier Dep. Tr. at 16). Another HPC employee, Veronica Santiago (“Santiago”), testified about Barcia, “I thought he was pretty chill, never got too loud honestly, not that I recall and I worked pretty often.” (Santiago Dep. Tr. at 19-20). When asked whether Barcia “appeared sober,” Santiago responded by answering, “[l]ike he just woke up. He seemed completely normal.” (Santiago Dep. Tr. at 49). In summary, there is significant evidence that HPC did not violate the exception to Florida’s dram shop law, section 768.125, Florida Statutes, which HPC has asserted in its Tenth Affirmative Defense. For these reasons, this Court concludes that HPC has meritorious defenses. Based upon the foregoing, it is hereby and ADJUDGED that the Amended Motion of Defendant Hooters of Port Charlotte, Inc. for Relief From, And To Vacate, Final Judgment, is GRANTED in all respects, and upon the effective date of the Final Judgment For Compensatory Damages And Taxable Costs As To Hooters of Port Charlotte, Inc. entered in the above-styled, instant action, that Final Judgment in favor of Plaintiff and against Hooters of Port Charlotte, Inc. is hereby vacated. and in Chambers at Port Charlotte, Charlotte County, Florida. HON. GEOFFREY GENTILE Circuit Judge