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IN THE CIRCUIT COURT OF THE 11"
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
National General Insurance Co., CIRCUIT CIVIL DIVISION
CASE NO.: 17-22717 CA (22)
Plaintiff,
vs.
AJC Trucking Inc., et. al.,
Defendant.
/
ORDER DENYING DEFENDANTS’ MOTION TO VACATE
DEFAULT JUDGMENT AND SET ASIDE DEFAULT
THIS CAUSE is before the Court upon Defendants’ “Motion to Vacate Default
Judgment and Set Aside Default” filed on January 25, 2018. The Motion, filed by
Defendants Ricardo Corredera Hernandez (“Hernandez”) and Ayen Cardoso
(“Cardoso”), is brought pursuant to Fla. R. Civ. P. 1.540(b)(1), which permits the
Court to “relieve a party” from a judgment, decree or order entered as a result of
“mistake, inadvertence, surprise or excusable neglect.” Jd. These Defendants, on
behalf of themselves and presumably Defendant AJC Trucking, Inc., claim that the
defaults entered against them should be vacated because they were served with process
in late October 2017 and neglected to respond to the lawsuit because:
As a result of the damages caused by hurricane Irma and the ensuing
ordeal to return to normalcy, the above referenced Complaint, through
excusable neglect, was misplaced.”See Cardoso Affidavit, § 5; Hernandez Affidavit 7 5. These affidavits do not
illuminate on how any property owned by these Defendants was “damaged” as a result
of this hurricane — which barely missed South Florida approximately forty five (45)
days earlier — or on the nature of the “ensuing ordeal” either Defendant faced.'
Without deciding whether the Defendants acted with “due diligence,” or have a
“meritorious defense,” the Court concludes that their Rule 1.540(b)(1) motion fails to
establish “excusable neglect” in not responding to the complaint. The Court finds
Defendants’ proffered justification for ignoring this lawsuit to be lacking in factual
support and disingenuous. See, e.g., Airport Ctr., Inc. v. Ugarte, 91 So. 3d 936 (Fla.
3d DCA 2012).
As this Court has said before, a party that choses to ignore litigation does so at
its own peril. See Hart v. Lincoln Fields, 24, Fla. L. Weekly Supp. 940 (11" Cir., Jan.
20, 2017), citing Whitney v. A Aventura Chiropractic Care Ctr., Inc., 21 So. 3d 95
(Fla. 3d DCA 2009) (“[i]gnoring a lawsuit after service of the original complaint is the
legal equivalent of ignoring the dashboard signal for ‘no brakes’ in a rapidly-moving
automobile”). The Defendants ignored this lawsuit at their peril — an error the Court
cannot — and will not — relieve them from.
1 These bare bones affidavits were filed after the Defendant’s initial motion— unsupported at all — was denied with leave
to file an amended motion supported by evidence establishing the elements necessary to secure relief. See, e.g., Lazcar
Intern., Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007) (party seeking relief froma default must demonstrate: (1)
excusable neglect; (2) a meritorious defense; and (3) due diligence in seeking relief).Defendants’ “Motion to Vacate Default Judgment and Set Aside Default” is
DENIED.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on
03/09/18.
MICHAEL HANZMAN
CIRCUIT COURT JUDG
No Further Judicial Action Required
on THIS MOTION
CLERK TO RECLOSE CASE IF POST
JUDGMENT
The parties served with this Order are indicated in the accompanying 11th Circuit email
confirmation which includes all emails provided by the submitter. The movant shall
IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or
hand-delivery, to all parties/counsel of record for whom service is not indicated by the
accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court.
Signed original order sent electronically to the Clerk of Courts for filing in the Court file.
Edersy Suarez, Esquire
esuarez.law@gmail.com
Francisco Cieza, Esquire
info@ciezalaw.com
William J. McFarlane, Esquire
pleadingservice@mefarlanedolanlaw.com
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IN THE CIRCUIT COURT OF THE 11" JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA National General Insurance Co., CIRCUIT CIVIL DIVISION CASE NO.: 17-22717 CA (22) Plaintiff, vs. AJC Trucking Inc., et. al., Defendant. / ORDER DENYING DEFENDANTS’ MOTION TO VACATE DEFAULT JUDGMENT AND SET ASIDE DEFAULT THIS CAUSE is before the Court upon Defendants’ “Motion to Vacate Default Judgment and Set Aside Default” filed on January 25, 2018. The Motion, filed by Defendants Ricardo Corredera Hernandez (“Hernandez”) and Ayen Cardoso (“Cardoso”), is brought pursuant to Fla. R. Civ. P. 1.540(b)(1), which permits the Court to “relieve a party” from a judgment, decree or order entered as a result of “mistake, inadvertence, surprise or excusable neglect.” Jd. These Defendants, on behalf of themselves and presumably Defendant AJC Trucking, Inc., claim that the defaults entered against them should be vacated because they were served with process in late October 2017 and neglected to respond to the lawsuit because: As a result of the damages caused by hurricane Irma and the ensuing ordeal to return to normalcy, the above referenced Complaint, through excusable neglect, was misplaced.”See Cardoso Affidavit, § 5; Hernandez Affidavit 7 5. These affidavits do not illuminate on how any property owned by these Defendants was “damaged” as a result of this hurricane — which barely missed South Florida approximately forty five (45) days earlier — or on the nature of the “ensuing ordeal” either Defendant faced.' Without deciding whether the Defendants acted with “due diligence,” or have a “meritorious defense,” the Court concludes that their Rule 1.540(b)(1) motion fails to establish “excusable neglect” in not responding to the complaint. The Court finds Defendants’ proffered justification for ignoring this lawsuit to be lacking in factual support and disingenuous. See, e.g., Airport Ctr., Inc. v. Ugarte, 91 So. 3d 936 (Fla. 3d DCA 2012). As this Court has said before, a party that choses to ignore litigation does so at its own peril. See Hart v. Lincoln Fields, 24, Fla. L. Weekly Supp. 940 (11" Cir., Jan. 20, 2017), citing Whitney v. A Aventura Chiropractic Care Ctr., Inc., 21 So. 3d 95 (Fla. 3d DCA 2009) (“[i]gnoring a lawsuit after service of the original complaint is the legal equivalent of ignoring the dashboard signal for ‘no brakes’ in a rapidly-moving automobile”). The Defendants ignored this lawsuit at their peril — an error the Court cannot — and will not — relieve them from. 1 These bare bones affidavits were filed after the Defendant’s initial motion— unsupported at all — was denied with leave to file an amended motion supported by evidence establishing the elements necessary to secure relief. See, e.g., Lazcar Intern., Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007) (party seeking relief froma default must demonstrate: (1) excusable neglect; (2) a meritorious defense; and (3) due diligence in seeking relief).Defendants’ “Motion to Vacate Default Judgment and Set Aside Default” is DENIED. DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 03/09/18. MICHAEL HANZMAN CIRCUIT COURT JUDG No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court. Signed original order sent electronically to the Clerk of Courts for filing in the Court file. Edersy Suarez, Esquire esuarez.law@gmail.com Francisco Cieza, Esquire info@ciezalaw.com William J. McFarlane, Esquire pleadingservice@mefarlanedolanlaw.com