12 Fla. L. Weekly Supp. 800a
Insurance — Personal injury protection — Default — Where court specifically required that responsive pleading be filed, insurer failed to file responsive pleading and instead filed motion to dismiss for forum non conveniens, and insurer was served with application for default but still did not file responsive pleading, default was properly entered — Motion to vacate denied
MIAMI SHORES PAIN RELIEF CENTER, INC., a/a/o Marie Saintil, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-3130 COSO (53). May 11, 2005. Robert W. Lee, Judge. Counsel: Joshua Meadow, North Miami, for Plaintiff. Leandro Lissa, Coral Gables, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO VACATE DEFAULT
THIS CAUSE came before the Court on April 29, 2005 for hearing of the Defendant’s Motion to Vacate Default, and the Court’s having reviewed the Motion and Court file; heard argument of counsel; reviewed the relevant legal authorities; and been sufficiently advised in the premises, rules as follows:
Background. This case was originally filed under the Small Claims Rules. The parties requested that the matter proceed under the Rules of Civil Procedure. On January 21, 2005, the Honorable Gisele Pollack granted the request and at the same time transferred the case to the Central Courthouse for jury trial. In the same Order, Judge Pollack specified that “[c]ounsel for the Defendant has twenty (20) days from the date of this order to file a responsive pleading” (emphasis added).
On February 18, 2005, the Defendant filed its Motion for Enlargement of Time to Respond to the Complaint. By Order dated March 2, 2005, this Court denied the Motion, noting that the “Defendant was served December 16, 2004 and already given an extension from January 21, 2005 to file a response to the Complaint. The Plaintiff may move for a default.” A copy of this Order was mailed by the Court to defense counsel.
Rather than file a responsive pleading, the Defendant on March 9, 2005 filed its Motion to Dismiss for Forum Non Conveniens. The day prior, on March 8, 2005, the Plaintiff filed its Motion for Default by the Court, which was served by mail on Defendant on March 4, 2005.
On March 14, 2005, the Clerk forwarded the file to the Court. By that date, the Defendant had still failed to file a responsive pleading. As a result, the Court entered its Order of Default, stating that “Defendant was given a court deadline to answer the Complaint and failed to comply. The Plaintiff has moved for a default, and the Defendant has still failed to comply. The Defendant has been provided notice of the application for default.” To support its ruling, the Court cited several cases, including Mondeja v. Cuevas, 583 So.2d 1115, 1116 (Fla. 3d DCA 1991); and Smith v. Gunsaullus, 511 So.2d 1108, 1109 (Fla. 1st DCA 1987). Once again, a copy of this Order was mailed to defense counsel.
On March 31, 2005, the Defendant filed its Motion to Vacate Default Judgment, a misnomer because no judgment had yet been entered. The Court set the matter for hearing for April 29, 2005. At the hearing, defense counsel argued that under Rule 1.500(c), its filing a Motion to Dismiss barred the entry of the default. Plaintiff argued that the Motion was not a “responsive pleading” required by court order, and therefore the Court default was appropriate.
Conclusions of Law. The Plaintiff is correct. When a court requires that a “responsive pleading” be filed, the responding party must file a pleading and not a motion. H. Trawick, Trawick’s Florida Practice & Procedure §6-1 (1994). While it is true that under Rule 1.500(c) that “a party may plead or otherwise defend at any time before default is entered,” this rule doe not eliminate the effectiveness of a court order requiring specific conduct by a specified deadline. See Mondeja; Gunsaullus. See also Rule 1.500(b), which provides in part that a default may be entered by the court “[w]hen a party [. . .] has failed to plead or otherwise defend as provided by [. . .] any order of court.” Subsection (b) addresses the circumstance in which a party has filed something other than the required response: “if such party has filed or served any paper in the action, that party shall be served with notice of the application for default.” Had the Defendant filed a responsive pleading before the court default was entered, then Rule 1.500(c) may have barred the entry of the default. The Defendant, however, did not and still has not done so. The Defendant was served with a copy of the application for default. The default was properly entered. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Vacate Default is DENIED.
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