Kennedy v. Tamiami Hotel LLC
2:17-cv-00358
M.D. Fla.Aug 14, 2017Background
- Plaintiff Patricia Kennedy moved for entry of Clerk’s default against Defendant Tamiami Hotel LLC; the Clerk entered default on August 8, 2017.
- Defendant’s registered agent forwarded the Summons and Complaint to the company’s representative in Chile, whose limited English impaired his understanding of the documents.
- Defendant did not realize the significance of the papers until it received the Clerk’s Entry of Default on August 9, 2017.
- Upon learning of the default, Defendant promptly retained counsel and filed an Answer and Affirmative Defenses.
- Plaintiff’s counsel consented to the motion to set aside the Clerk’s default.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should set aside the Clerk’s entry of default under Fed. R. Civ. P. 55(c) | Default should stand because it was entered by the Clerk after failure to respond | Default resulted from non-willful misunderstanding and was promptly corrected; Defendant has meritorious defenses | Granted: court vacated and set aside the Clerk’s default for good cause |
Key Cases Cited
- Perez v. Wells Fargo N.A., 774 F.3d 1329 (11th Cir.) (describes the liberal, mutable "good cause" standard for setting aside defaults)
- Compania Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948 (11th Cir.) (identifies factors courts consider: culpability, prejudice, meritorious defense)
- Florida Physician's Ins. Co. v. Ehlers, 8 F.3d 780 (11th Cir.) (notes defaults are disfavored and cases should be decided on merits)
- Gulf Coast Fans, Inc. v. Midwest Elecs. Importers, Inc., 740 F.2d 1499 (11th Cir.) (supports policy favoring resolution on the merits)