14 Fla. L. Weekly Supp. 96a
Insurance — Personal injury protection — Default — Because insurer filed notice of appearance, such that default is processed through court rather than clerk and rule 1.500(b) applies, service of motion for enlargement of time did not bar entry of default where insurer was provided with notice of application for default and motion for enlargement of time was not filed before court entered default — Vacation — Denial — Excusable neglect — Mere conclusory statement that office was “bombarded” with files, without facts regarding how and when files were provided and explanation for why insurer could not review files prior to 20-day response deadline or file motion for enlargement of time at same time as notice of appearance, does not demonstrate excusable neglect — Motion to vacate denied
SOUTH FLORIDA PAIN & REHABILITATION, P.A. (a/a/o Brady Lashonda), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-14723 COCE (53). November 21, 2006. Robert W. Lee, Judge. Counsel: Joseph Dawson, Fort Lauderdale, for Plaintiff. Mireya L. Rivera, West Palm Beach, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO VACATE DEFAULT
THIS CAUSE came before the Court on November 20, 2006 for hearing of the Defendant’s Motion to Vacate Default, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
Findings of Fact. On September 15, 2006, the Plaintiff filed its Complaint in this action. The Defendant was served on September 29, 2006. The Defendant failed to timely respond to the Complaint, but filed a Notice of Appearance on October 17, 2006. On October 19, 2006, the Plaintiff moved for a Court default, which was copied to defense counsel. The next day, the Defendant mailed its Motion for Enlargement of Time.1 On October 23, 2006, the Court entered a default against the Defendant pursuant to Rule 1.500(b). The next day, the Defendant’s Motion for Extension of Time was filed of record.
On November 1, 2006, the Defendant served its Motion to Vacate Default.2 The Motion was not submitted with any supporting affidavits. Thereafter, on November 7, 2006, the Defendant filed supporting affidavits of Yuill Signor and Erajh Panditaratne, Esq. The Defendant’s Motion to Vacate Default was set for hearing for November 20, 2006.
The Defendant’s position at the hearing, as well as presented in the Motion, encompassed several issues. First, the Defendant argued that the default was improperly entered due to the service of the Motion for Enlargement of Time. Next, the Defendant argued that its failure to respond to the Complaint was excusable, “due to the number of cases [the attorneys] were bombarded with and the voluminous nature of them[, defense counsel] needed the assistance of [his] attorneys and staff in [his] West Palm Beach office.” On November 8, 2006, the Defendant filed a proposed Answer and Affirmative Defenses. The Plaintiff has clearly objected to the relief sought by the Defendant.
Conclusions of Law. Initially, the Court notes that the default was properly entered against the Defendant. When a Notice of Appearance has been filed by a defendant, the default process goes through the Court rather than the Clerk. As a result, Rule 1.500(b) is implicated. Under this rule, the service of a Motion for Enlargement of Time does not operate to bar entry of a default, so long as the defendant is provided notice of the application for default. Such notice was provided in this case. This is different from a Clerk’s default which cannot be entered if the defendant has served a paper before the default is entered. Rule 1.500(a). In the instant case, the Motion for Enlargement of Time was not served until after the Defendant filed its Motion for Default. Further, the Motion for Enlargement of Time was not filed before the Court entered its default against the Defendant. So, while the Motion for Enlargement of Time was served prior to the Court’s entry of a default against the Defendant, the Defendant “failed to plead or otherwise defend” as required by Rule 1.500(b) before the default was actually entered.
The Court therefore next considers the general standards for vacating a default. The Court does not believe the Defendant is entitled to the relief it is seeking. In order to prevail on a motion to vacate default, the Defendant must establish three matters: (1) that the failure to act in this cause is due to “excusable neglect”; (2) that it has a meritorious defense to the action; and (3) that it has acted with due diligence in moving to set aside the default within a reasonable time after discovering that it had been entered. Credit General Ins. Co. v. Thomas, 515 So.2d 336, 337 (Fla. 3d DCA 1987). Moreover, the motion must be made under oath. Dodrill v. Infe, Inc., 837 So.2d 1187, 1187 (Fla. 4th DCA 2003). The Court initially notes that the third and fourth prongs are not at issue here, as the Defendant has moved with due diligence, and further submitted the Motion under oath. The Court finds, however, that the Defendant has failed to meet its burden on at least one of the two remaining requirements.
As for the first prong, the Court finds that the Defendant has simply failed to establish excusable neglect. First, the evidence at the hearing demonstrated no more than what was stated in Mr. Panditaratne’s affidavit: that the office was “bombarded” with files. No information was provided as to how much files were provided, when they were provided, and why the Defendant was not able to review them before the 20-day response deadline. The Defendant expects the Court to infer much from its use of the word “bombarded.” Importantly, while the Defendant was able to timely file a Notice of Appearance, it did not file at the same time its Motion for Enlargement of Time. Defense counsel could offer no explanation as to why this was not done at the same time. Under Florida law, a party must set forth facts, not mere conclusions, that explain the alleged excusable neglect. As noted by a Florida appellate court, “[t]he requirement that the defendant demonstrate excusable neglect requires more than a conclusionary statement. A party moving to vacate a default must set forth facts explaining or justifying the mistake or inadvertence.” Inter-Atlantic Ins. Services, Inc. v. Hernandez, 632 So.2d 1069, 1069 (Fla. 3d DCA 1994). See also Hornblower v. Cobb, 932 So.2d 402, 406 (Fla. 2d DCA 2006) (“the record is silent as to any facts that might support a finding of excusable neglect”); Moreno Construction, Inc. v. Clancy & Theys Construction Co., 722 So.2d 976, 977 (Fla. 5th DCA 1999) (“must set forth facts”); Baptist Hospital of Miami, Inc. v. Demario, 661 So.2d 319, 322 (Fla. 3d DCA 1995); Newkirk v. Florida Ins. Guaranty Ass’n, Inc., 464 So.2d 1256, 1256 (Fla. 3d DCA 1985). Assuming the Defendant gets over the hurdle of having failed to submit its affidavits along with its Motion, the Defendant has, simply put, failed to meet its burden in demonstrating excusable neglect.
As for the second prong, the Defendant has proffered a defense, set forth in its proposed Answer and Affirmative Defenses. Due to the clear deficiency in establishing excusable neglect, the Court need not consider the sufficiency of these defenses. Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion to Vacate Default is hereby DENIED.
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1Although the Motion contained a certificate of service for October 18, 2006, the evidence at the hearing demonstrated that this date was incorrect. The Motion was not actually served until October 20, 2006.
2Once again, the evidence at the hearing that the date contained within the certificate of service was incorrect, being once again dated too early.
