14 Fla. L. Weekly Supp. 777b
Insurance — Personal injury protection — Default — Mere participation in case, by participating in mediation ending in impasse, without responding to complaint is not sufficient to avoid default
HOMESTEAD CHIRO MEDICAL CENTER (a/a/o Mesamour Marulin), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-12011 COCE 53. June 4, 2007. Robert W. Lee, Judge. Counsel: Sanford R. Topkin, Deerfield Beach, for Plaintiff. Sean Sweeney, Coral Gables, for Defendant.
ORDER OF DEFAULT
THIS CAUSE came before the Court for consideration of the Plaintiff’s Motion for Entry of Default, and the Court’s having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: This action was filed on August 5, 2005. The Defendant was served on August 11, 2005. The Defendant has not responded to the Complaint. On March 26, 2007, the Court entered its Notice of Lack of Prosecution/Motion to Dismiss for Lack of Prosecution, giving the Plaintiff 60-days notice to avoid dismissal. The Plaintiff, apparently unaware that the Defendant had not responded to the Complaint, filed a Notice to Set Cause for Jury Trial. As a result, the Court referred the matter to mediation. Mediation was held on April 26, 2007, at which time Defendant participated. However, an impasse was reached. Thereafter, the Court set pretrial deadlines. On May 24, 2007, the Plaintiff served its Motion for Entry of Default due to Defendant’s failure to respond to the Complaint. As of today, the Defendant still has not filed a responsive pleading.
In its Motion for Entry of Default, the Plaintiff provided notice to Defendant’s counsel that it was seeking a default. The Court has provided the Defendant a reasonable amount of time to respond to the Motion for Default, but the Defendant has continued to fail to file a response.
Conclusions of Law: By failing to file a response in this action, the Plaintiff is entitled to a default. By participating in the case, including mediation, the Defendant was entitled to notice when the Plaintiff sought a default. The Plaintiff did so. Nevertheless, the Defendant has continued to fail to file the required pleading. Merely participating in a case, without responding to the Complaint, is not sufficient to avoid entry of a default. Additionally, by the Plaintiff’s serving its Motion, the Defendant has been provided a de facto extension to respond, but has continued to fail to do so. Moreover, the Court has delayed entry of this Order to provide the Defendant a reasonable amount of time to respond to the Motion for Default, to no avail. As a result, the Plaintiff is entitled to a default, and no hearing is required. See Picchi v. Barnett Bank of South Florida, 521 So.2d 1090, 1090-91 (Fla. 1988); Mondeja v. Cuevas, 583 So.2d 1115, 1116 (Fla. 3d DCA 1991); Rule 1.500(b), Fla. R. Civ. P. Accordingly, it is hereby
ORDERED and ADJUDGED that the Plaintiff’s Motion for Default is hereby GRANTED, and a Default is hereby entered against the Defendant.
