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E-Filed 10/25/2012 02:09 PM James B. Jett
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT IN AND
FOR CLAY COUNTY, FLORIDA
CASE NO.: 12-CA-1833
DIVISION: E
H & LK, LLC,
Plaintiff,
vs.
INDIVIDUALIZED EDUCATIONAL SERVICES, INC.,
a Florida Corporation, NATHAN AND NANCY ALBERTS,
individually,
Defendants.
/
DEFENDANTS’ MOTION TO SET ASIDE CLERK’S DEFAULT
Defendants, by counsel, via the Florida Rule of Civil Procedure 1.540(b), hereby moves
this Honorable Court to enter an Order Setting Aside Clerk’s Default and, in support thereof,
states:
1) Plaintiff sought entry if the clerk’s default judgment before the time had run to do
so under the rule. The record shows that service was allegedly perfected on
September 25, 2012. Under the Rule, the day of service is not calculated into the
20 day period.
2) Accordingly, a motion for default could not have been appropriate to be filed until
October 16, 2012. However, at bar, Plaintiff “jumped the gun” and filed the
motion a day early, on October 15, 2012.
3) Meanwhile, Defendants served their motion to dismiss on September 16, 2012;
the clerk indicates filing it on September 17, 2012. Even though the motion fordefault was filed early, the clerk issued its default on September 16, 2012.
Further, Plaintiff has been aware of the undersigned’ appearance and motion to
dismiss the action because the undersigned’ contacted Plaintiff counsel of October
16, 2012, to set a hearing on Defendants’ Motion to Dismiss.
4) Defendants can show excusable neglect and a meritorious defense as grounds for
setting aside the clerk’s default.
5) Florida law strongly favors adjudication of disputes such as this one on the merits,
and the Defendant has several meritorious defenses as set forth in the Complaint.
I. BACKGROUND
1. On or about September 17, 2012, the action was filed.
2. On October 16, 2012, the undersigned’s officer telephoned counsel for Plaintiff,
confirmed the representation of Defendants, that a motion to dismiss was filed, and to set hearing
on same..
3. Unbeknownst to the undersigned, The Plaintiff had prematurely filed a motion for
default October 15, 2012.
4. Shortly thereafter the undersigned’ paralegal spoke with Plaintiff Attorney Irving
about the motion to dismiss and scheduling a settlement conference.
6. Defendant’s served the Motion to Dismiss on October 16, 2012, the day that the
information was left with Plaintiff's counsel’s office..
I. ARGUMENT
The Defendants are entitled to the relief they request because Florida law favors
adjudication of disputes on their merits, because she can show excusable neglect and surprise innot answering the Complaint within 20 days and because the resulting clerk’s default was issued
improvidently.
A. Setting Aside Clerk’s Defaults and Default Judgments
Tn general, courts may set aside defaults in light of several factors, including surprise and
excusable neglect. Fla. R. Civ. P. 1.540(b). More specifically, to set side a default, a party must
show (1) excusable neglect for failing to file a responsive pleading and (2) a meritorious defense
to justify setting aside a judgment. See Florida Aviation Academy v. Charter Air Center, Inc.
449 So. 2d 350, 352-53 (Fla. 1" DCA 1984); Winter Park Arms, Inc. v. Akerman, et al., 199 So.
2d 107, 108 (Fla. 4" DCA 1967).
The well settled policy of Florida Courts is to grant motion to set aside defaults so that
courts may adjudicate disputes on their merits, rather than on the procedural device of a default.
Coggin v. Barfield, 8 So. 2d 9 (Fla. 1942).
The true purpose of the entry of a default is to speed the cause thereby preventing
a dilatory or procrastinating defendant from impeding the plaintiff in the
establishment of his claim. It is not procedure intended to furnish an advantage to
the plaintiff so that a defense may be defeated or a judgment reached without the
difficulty that arises from a contest by the defendant.
Id. at 11. See also North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962). If there is any
reasonable doubt in the court’s discretion whether to set aside a default, the court should err on
the side of letting the matter go forward on the merits. Id. at 853 (cited in Hanft v. Church, 671
So.2d 249, 250 (Fla. 3d DCA 1996); Ole, Inc. v. Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990); Florida
Aviation Academy v. Charter Air Center, Inc., 449 So. 2d 350, 352-53 (Fla. Ist DCA 1984); County
Nat’| Bank v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981). See also Edwards v. City of Fort
Walton Beach, 271 So. 2d 136 (Fla.1972); Doane v. O’Donnell, 467 So. 2d 424 (Fla. 4th DCA
1985); Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983).Florida courts universally recognize the liberality of setting aside defaults if there is
excusable neglect and a meritorious defense. Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So.2d
746, 747 (Fla. 3d DCA 1992); Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee,
543 So. 2d 813 (Fla. Ist DCA 1989); | EGF Tampa Assocs. v. Edgar V. Bohlem, 532 So. 2d 1318
(Fla. 2d DCA 1988); Reicheinbach v. Southeast Bank, N.A., 462 So. 2d 611 (Fla. 34 DCA 1985).
See also H. Trawick, Florida Practice & Procedure. § 25-2, 25-3 (1985).
As discussed below, this case presents more than sufficient justification of excusable neglect,
surprise, and meritorious defense necessary to set aside the clerk’s default and the default judgment.
1. Considering the Premature Motion for Default and the Clerk’s Acttion
upon same, the notice to Plaintiff's Counsel, and the Defense Motion to
Dismiss, Served on the 21“ day, the Motion for Clerk Default provides
the basis for excusable neglect and surprise
The excusable neglect and surprise in this case flow directly from first the Plaintiffs
premature filing of the Motion for Default. Instead of waiting the actual 21 days from the date of
service, given that the day of service is not counted by rule, Plaintiff filed its request for default a
day early. Thus the Clerk should not have granted the untimely motion.
Had the Clerk not ruled upon the premature motion for default, it would have received the
Defendants’ Motion to Dismiss served on the last day of the 21 days — October 16, 2012. That very
day, the Defendants’ counsel was in contact with the counsel for the Plaintiff that it intended to
defend the lawsuit, that a motion to dismiss had been filed and that Defendants were seeking a
hearing date on its motion. Never was counsel for Defendants informed that a Motion for Default
was being sought.
The First District Court of Appeal addressed the exact same scenario in Gulf
Maintenance, 543 So. 2d at 813. There, as at bar, counsel for the defendant contacted theplaintiff's counsel, advising him of the defendants’ defenses and __ possible
counterclaims. Subsequently, counsel exchanged correspondence. After a period of no
communication between counsel, the plaintiff obtained new counsel, filed suit and eventually a
notice of default, without notifying counsel for the defendants. Ultimately plaintiff received a
final default judgment totaling $92,920.33. The defendants appealed the denial of their motion to
set aside default judgment and default, and the district court reversed. The court, quoting Coggin
v. Barfield, 8 So. 2d 9, 11 (Fla. 1942), reiterated that the “true purpose of the entry of a default
is to speed the cause .. . not . . . to furnish an advantage to the plaintiff so that a defense may be
defeated or a judgment reached without the difficulty that arises from a contest by the
defendant.” Id. at 816.
The Gulf Maintenance court explained that “entry of default is appropriate where a
defendant does not intend to appear and defend the merits of the action . . . [o]n the other hand,
default is not appropriate in cases where the plaintiff knows that a defendant is represented
by counsel who intends to assert matters in defense of the cause of action.” Id. (emphasis added).
The facts at bar are more forceful than in Gulf Maintenance, because the Plaintiff at bar did not hire
new counsel. Rather, here, Plaintiff's counsel was well-aware that the Defendant was represented by
the undersigned and intended to assert defenses. However, the day before it was timely to do so
under the Rules, the Plaintiff sought a default..
Likewise, in Ole, Inc. v. Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990), the district court
reversed the trial court and set aside the default judgment and default because the “plaintiffs had
actual knowledge that Ole intended to defend the lawsuit.” Id. at 814. In Ole, the plaintiffs’ counsel
sent a copy of the demand letter and complaint to Ole’s distributor, which forwarded it to the Ole
administrative office. Afterward, Ole’s insurance agent contacted plaintiff's counsel and stated thatit intended to defend the suit and was seeking counsel. The Ole decision is even more compelling by
the fact that plaintiffs’ counsel never communicated with Ole’s attorney. Nonetheless the court
concluded that plaintiffs’ counsel’s knowledge that Ole was seeking representation and intended to
defend was sufficient to vacate the default judgment and default. Id. at 815. _
More recently, in National Union Fire Ins. Co. of Pitt. v. McWilliams, 799 So. 2d 378 (Fla.
4th DCA 2001), the district court also held that default judgment was required to be set aside where
there was knowledge by the party seeking default that the adverse party was represented by counsel
and no notice to the attorney was given. The McWilliams court held that “an ex parte default
should be set aside where the plaintiff seeking default had actual knowledge that the defendant was
represented by counsel and intended to defend the lawsuit, but failed to contact the defendant’s
counsel prior to seeking default.” Id. at 380.
The circumstances at bar are exactly the same as the facts involved in the Gulf Maintenance,
Ole, and McWilliams decisions. As indicated above, Plaintiff's counsel contacted the undersigned,
transmitted the complaint, sent letter, discussed the merits of the case, and even settlement, and the
undersigned indicated clearly that the matter would be contested. The foregoing notwithstanding,
Plaintiff avoided informing the undersigned about the constructive service or that Plaintiff was
subsequently seeking default and judgment.
Accordingly, The Defendant has shown excusable neglect and surprise, the first element of
justifying an order setting aside the clerk’s default and the default judgment. Next, she must show
that she has a meritorious defense.
2. The Defendants’ Motion to Dismiss provides several grounds for a
meritorious defense, such as issues of Child Support and Equitable
Distribution.The Defendant has a meritorious defense to the Complaint, as evidenced by the pending
motion to Dismiss. Essentially, the parties have no privity between them. The corporate Defendant
is not the corporation bound to the agreement and the individual Defendants have no personal
guarantees on the agreement.
3. The Defendants has not acted with gross negligence, has shown
excusable neglect and surprise, and has several meritorious defenses,
and is therefore due to have an opportunity to defend Plaintiffs
Complaint on the merits.
Anything short of gross negligence by a party seeking to have a default set aside will justify
such an order. Serrano v. Ayala, 728 So. 2d 1231 (Fla. 3d DCA 1999)(‘default should have been
set aside because the plaintiff knew the defendant intended to defend the lawsuit, and because the
default was not due to the defendant’s gross negligence.”)(cites omitted).
The Defendants exercised due diligence in contacting counsel for the Plaintiff, in filing a
Motion to Dismiss and in promptly seeking relief upon learning of the clerk’s default, filing the
instant motion within days of such knowledge. Thus the Defendants have not acted with gross
negligence.
Ill. CONCLUSION
Based upon the foregoing, it is clear that:
1. The Defendants excusable neglect in this case flowed directly from the Plaintiff's
early filing of the Motion for Default, and failure to inform the Defendants’ known
counsel about the motion for clerk’s default;
2. The Defendants have meritorious defenses and counterclaims to the lawsuit;
3. The Defendants has exercised due diligence in seeking relief from this Court upon
learning of the clerk’s default; and
4. Equity mandates that the case be resolved on its merits.WHEREFORE, the Defendants respectfully request that the Court enter an order setting
aside the clerk’s default, and allow this matter to proceed on the merits.
CERTIFICATE OF SERVICE
Thereby certify that I have caused a true and correct copy of the foregoing to be served to by
email upon: Aaron Irving, Esq., aaron.irving.law@gmail.com, this 25" day of October, 2012.
Respectfully submitted,
Earl M. Johnson, Jr.
Earl M. Johnson Jr., Esq.
Florida Bar No. 006040
P.O. Box 40091
Jacksonville, Florida 32203
(904) 356-5252 Telephone
(904) 394-3288 Facsimile
jaxlawfl@aol.com (Primary)
jaxlawnfl@gmail.com (Secondary)
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E-Filed 10/25/2012 02:09 PM James B. Jett IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR CLAY COUNTY, FLORIDA CASE NO.: 12-CA-1833 DIVISION: E H & LK, LLC, Plaintiff, vs. INDIVIDUALIZED EDUCATIONAL SERVICES, INC., a Florida Corporation, NATHAN AND NANCY ALBERTS, individually, Defendants. / DEFENDANTS’ MOTION TO SET ASIDE CLERK’S DEFAULT Defendants, by counsel, via the Florida Rule of Civil Procedure 1.540(b), hereby moves this Honorable Court to enter an Order Setting Aside Clerk’s Default and, in support thereof, states: 1) Plaintiff sought entry if the clerk’s default judgment before the time had run to do so under the rule. The record shows that service was allegedly perfected on September 25, 2012. Under the Rule, the day of service is not calculated into the 20 day period. 2) Accordingly, a motion for default could not have been appropriate to be filed until October 16, 2012. However, at bar, Plaintiff “jumped the gun” and filed the motion a day early, on October 15, 2012. 3) Meanwhile, Defendants served their motion to dismiss on September 16, 2012; the clerk indicates filing it on September 17, 2012. Even though the motion fordefault was filed early, the clerk issued its default on September 16, 2012. Further, Plaintiff has been aware of the undersigned’ appearance and motion to dismiss the action because the undersigned’ contacted Plaintiff counsel of October 16, 2012, to set a hearing on Defendants’ Motion to Dismiss. 4) Defendants can show excusable neglect and a meritorious defense as grounds for setting aside the clerk’s default. 5) Florida law strongly favors adjudication of disputes such as this one on the merits, and the Defendant has several meritorious defenses as set forth in the Complaint. I. BACKGROUND 1. On or about September 17, 2012, the action was filed. 2. On October 16, 2012, the undersigned’s officer telephoned counsel for Plaintiff, confirmed the representation of Defendants, that a motion to dismiss was filed, and to set hearing on same.. 3. Unbeknownst to the undersigned, The Plaintiff had prematurely filed a motion for default October 15, 2012. 4. Shortly thereafter the undersigned’ paralegal spoke with Plaintiff Attorney Irving about the motion to dismiss and scheduling a settlement conference. 6. Defendant’s served the Motion to Dismiss on October 16, 2012, the day that the information was left with Plaintiff's counsel’s office.. I. ARGUMENT The Defendants are entitled to the relief they request because Florida law favors adjudication of disputes on their merits, because she can show excusable neglect and surprise innot answering the Complaint within 20 days and because the resulting clerk’s default was issued improvidently. A. Setting Aside Clerk’s Defaults and Default Judgments Tn general, courts may set aside defaults in light of several factors, including surprise and excusable neglect. Fla. R. Civ. P. 1.540(b). More specifically, to set side a default, a party must show (1) excusable neglect for failing to file a responsive pleading and (2) a meritorious defense to justify setting aside a judgment. See Florida Aviation Academy v. Charter Air Center, Inc. 449 So. 2d 350, 352-53 (Fla. 1" DCA 1984); Winter Park Arms, Inc. v. Akerman, et al., 199 So. 2d 107, 108 (Fla. 4" DCA 1967). The well settled policy of Florida Courts is to grant motion to set aside defaults so that courts may adjudicate disputes on their merits, rather than on the procedural device of a default. Coggin v. Barfield, 8 So. 2d 9 (Fla. 1942). The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant. Id. at 11. See also North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962). If there is any reasonable doubt in the court’s discretion whether to set aside a default, the court should err on the side of letting the matter go forward on the merits. Id. at 853 (cited in Hanft v. Church, 671 So.2d 249, 250 (Fla. 3d DCA 1996); Ole, Inc. v. Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990); Florida Aviation Academy v. Charter Air Center, Inc., 449 So. 2d 350, 352-53 (Fla. Ist DCA 1984); County Nat’| Bank v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th DCA 1981). See also Edwards v. City of Fort Walton Beach, 271 So. 2d 136 (Fla.1972); Doane v. O’Donnell, 467 So. 2d 424 (Fla. 4th DCA 1985); Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983).Florida courts universally recognize the liberality of setting aside defaults if there is excusable neglect and a meritorious defense. Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So.2d 746, 747 (Fla. 3d DCA 1992); Gulf Maintenance & Supply, Inc. v. Barnett Bank of Tallahassee, 543 So. 2d 813 (Fla. Ist DCA 1989); | EGF Tampa Assocs. v. Edgar V. Bohlem, 532 So. 2d 1318 (Fla. 2d DCA 1988); Reicheinbach v. Southeast Bank, N.A., 462 So. 2d 611 (Fla. 34 DCA 1985). See also H. Trawick, Florida Practice & Procedure. § 25-2, 25-3 (1985). As discussed below, this case presents more than sufficient justification of excusable neglect, surprise, and meritorious defense necessary to set aside the clerk’s default and the default judgment. 1. Considering the Premature Motion for Default and the Clerk’s Acttion upon same, the notice to Plaintiff's Counsel, and the Defense Motion to Dismiss, Served on the 21“ day, the Motion for Clerk Default provides the basis for excusable neglect and surprise The excusable neglect and surprise in this case flow directly from first the Plaintiffs premature filing of the Motion for Default. Instead of waiting the actual 21 days from the date of service, given that the day of service is not counted by rule, Plaintiff filed its request for default a day early. Thus the Clerk should not have granted the untimely motion. Had the Clerk not ruled upon the premature motion for default, it would have received the Defendants’ Motion to Dismiss served on the last day of the 21 days — October 16, 2012. That very day, the Defendants’ counsel was in contact with the counsel for the Plaintiff that it intended to defend the lawsuit, that a motion to dismiss had been filed and that Defendants were seeking a hearing date on its motion. Never was counsel for Defendants informed that a Motion for Default was being sought. The First District Court of Appeal addressed the exact same scenario in Gulf Maintenance, 543 So. 2d at 813. There, as at bar, counsel for the defendant contacted theplaintiff's counsel, advising him of the defendants’ defenses and __ possible counterclaims. Subsequently, counsel exchanged correspondence. After a period of no communication between counsel, the plaintiff obtained new counsel, filed suit and eventually a notice of default, without notifying counsel for the defendants. Ultimately plaintiff received a final default judgment totaling $92,920.33. The defendants appealed the denial of their motion to set aside default judgment and default, and the district court reversed. The court, quoting Coggin v. Barfield, 8 So. 2d 9, 11 (Fla. 1942), reiterated that the “true purpose of the entry of a default is to speed the cause .. . not . . . to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.” Id. at 816. The Gulf Maintenance court explained that “entry of default is appropriate where a defendant does not intend to appear and defend the merits of the action . . . [o]n the other hand, default is not appropriate in cases where the plaintiff knows that a defendant is represented by counsel who intends to assert matters in defense of the cause of action.” Id. (emphasis added). The facts at bar are more forceful than in Gulf Maintenance, because the Plaintiff at bar did not hire new counsel. Rather, here, Plaintiff's counsel was well-aware that the Defendant was represented by the undersigned and intended to assert defenses. However, the day before it was timely to do so under the Rules, the Plaintiff sought a default.. Likewise, in Ole, Inc. v. Yariv, 566 So. 2d 812 (Fla. 3d DCA 1990), the district court reversed the trial court and set aside the default judgment and default because the “plaintiffs had actual knowledge that Ole intended to defend the lawsuit.” Id. at 814. In Ole, the plaintiffs’ counsel sent a copy of the demand letter and complaint to Ole’s distributor, which forwarded it to the Ole administrative office. Afterward, Ole’s insurance agent contacted plaintiff's counsel and stated thatit intended to defend the suit and was seeking counsel. The Ole decision is even more compelling by the fact that plaintiffs’ counsel never communicated with Ole’s attorney. Nonetheless the court concluded that plaintiffs’ counsel’s knowledge that Ole was seeking representation and intended to defend was sufficient to vacate the default judgment and default. Id. at 815. _ More recently, in National Union Fire Ins. Co. of Pitt. v. McWilliams, 799 So. 2d 378 (Fla. 4th DCA 2001), the district court also held that default judgment was required to be set aside where there was knowledge by the party seeking default that the adverse party was represented by counsel and no notice to the attorney was given. The McWilliams court held that “an ex parte default should be set aside where the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact the defendant’s counsel prior to seeking default.” Id. at 380. The circumstances at bar are exactly the same as the facts involved in the Gulf Maintenance, Ole, and McWilliams decisions. As indicated above, Plaintiff's counsel contacted the undersigned, transmitted the complaint, sent letter, discussed the merits of the case, and even settlement, and the undersigned indicated clearly that the matter would be contested. The foregoing notwithstanding, Plaintiff avoided informing the undersigned about the constructive service or that Plaintiff was subsequently seeking default and judgment. Accordingly, The Defendant has shown excusable neglect and surprise, the first element of justifying an order setting aside the clerk’s default and the default judgment. Next, she must show that she has a meritorious defense. 2. The Defendants’ Motion to Dismiss provides several grounds for a meritorious defense, such as issues of Child Support and Equitable Distribution.The Defendant has a meritorious defense to the Complaint, as evidenced by the pending motion to Dismiss. Essentially, the parties have no privity between them. The corporate Defendant is not the corporation bound to the agreement and the individual Defendants have no personal guarantees on the agreement. 3. The Defendants has not acted with gross negligence, has shown excusable neglect and surprise, and has several meritorious defenses, and is therefore due to have an opportunity to defend Plaintiffs Complaint on the merits. Anything short of gross negligence by a party seeking to have a default set aside will justify such an order. Serrano v. Ayala, 728 So. 2d 1231 (Fla. 3d DCA 1999)(‘default should have been set aside because the plaintiff knew the defendant intended to defend the lawsuit, and because the default was not due to the defendant’s gross negligence.”)(cites omitted). The Defendants exercised due diligence in contacting counsel for the Plaintiff, in filing a Motion to Dismiss and in promptly seeking relief upon learning of the clerk’s default, filing the instant motion within days of such knowledge. Thus the Defendants have not acted with gross negligence. Ill. CONCLUSION Based upon the foregoing, it is clear that: 1. The Defendants excusable neglect in this case flowed directly from the Plaintiff's early filing of the Motion for Default, and failure to inform the Defendants’ known counsel about the motion for clerk’s default; 2. The Defendants have meritorious defenses and counterclaims to the lawsuit; 3. The Defendants has exercised due diligence in seeking relief from this Court upon learning of the clerk’s default; and 4. Equity mandates that the case be resolved on its merits.WHEREFORE, the Defendants respectfully request that the Court enter an order setting aside the clerk’s default, and allow this matter to proceed on the merits. CERTIFICATE OF SERVICE Thereby certify that I have caused a true and correct copy of the foregoing to be served to by email upon: Aaron Irving, Esq., aaron.irving.law@gmail.com, this 25" day of October, 2012. Respectfully submitted, Earl M. Johnson, Jr. Earl M. Johnson Jr., Esq. Florida Bar No. 006040 P.O. Box 40091 Jacksonville, Florida 32203 (904) 356-5252 Telephone (904) 394-3288 Facsimile jaxlawfl@aol.com (Primary) jaxlawnfl@gmail.com (Secondary)