COREPOINTE INSURANCE COMPANY

v.

POLITIS LAW FIRM

VACATE CLERK’S DEFAULT (Doc. No. 26) FILED: May 22, 2023

THEREON it is ORDERED that the motion is GRANTED.¹ On February 21, 2023, Plaintiff Corepointe Insurance Company (“Corepointe”) filed this action for declaratory relief, seeking a declaration of its obligations under an insurance policy it issued to Defendant Politis Law Firm, P.A. in connection with an underlying state court lawsuit brought by Defendant Cathleen White (as plenary guardian of David Fouts (“White”)) against Defendants Politis Law Firm, P.A. and Michael John Politis. Doc. No. 1. Defendants Politis Law Firm, P.A. and Michael John Politis have appeared in the matter, and by unopposed motion, the deadline for their response to the complaint has been extended through July 14, 2023. Doc. Nos. 22–23. The docket reflects that White was personally served with a copy of the summons and complaint on March 17,

2023. Doc. No. 18-1. However, White did not timely appear or respond to the

On May 22, 2023, counsel appeared on White’s behalf, and filed a motion to vacate the Clerk’s default. Doc. Nos. 25–26. White also subsequently filed a proposed answer. Doc. No. 33-1. Plaintiff has filed a response in opposition to the motion to vacate, contending that White has failed to establish good cause,

excusable neglect, or a meritorious defense, and thus, that the motion to vacate should be denied. Doc. No. 34. Both the motion for default judgment and the motion to vacate the Clerk’s default have been referred to the undersigned, and the matters are ripe for review. Regarding the motion to vacate the Clerk’s default, a court “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). “The defendant bears the burden of establishing good cause to set aside an entry of default.” Insituform

Tech., Inc. AMerik Supplies, Inc., 588 F. Supp. 2d 1349, 1352 (N.D. Ga. 2008) (citations omitted). “Good cause” is a liberal standard. Compania Interamericana Export- Import, S.A. v. Compania Dominicana de Aviacion, 88 F. 3d 948, 951 (11th Cir. 1996) (citation omitted). Courts have considered the following non-exclusive factors in determining whether to set aside an entry of default: (1) whether the default was culpable or willful; (2) whether setting the default aside would prejudice the opposing party; (3) whether the defaulting party presents a meritorious defense; (4) whether there was significant financial loss to the defaulting party; and (5) whether the defaulting party acted promptly to correct the default. Id. “Whatever factors are employed, the imperative is that they be regarded simply as a means of identifying circumstances which warrant the finding of ‘good cause’ to set aside a default.” Id. (citation omitted). The Eleventh Circuit has repeatedly held that there is a strong policy in favor of resolving cases on the merits and that defaults are viewed with disfavor. See Perez v. Wells Fargo N.A., 774 F. 3d 1329, 1339, 1342 (11th Cir. 2014). Therefore, any doubts regarding whether to set aside an entry of default should be resolved in favor of the party seeking relief. Davis v. Parkhill Goodloe Co., 302 F. 2d 489, 495 (5th Cir. 1962).2

Here, White states that the complaint was forwarded to her counsel by email on the evening of March 19, 2023. Doc. No. 26 ¶ 6. However, counsel left the country the following day, filed the email away, forgot about it, and only recalled on May 21, 2023, that he had not timely responded to the complaint in this matter. Id. ¶¶ 6–9. Counsel promptly moved to vacate the Clerk’s default the following day, May 22, 2023. Id. ¶ 10. White submits the declaration of counsel in support

In response, Corepointe takes issue with White’s counsel “forgetting” about the complaint from this matter given that counsel made filings in the underlying state court case during the same time period, and the lack of declaration or affidavit from White herself supporting the motion. Doc. No. 34, at 5–8. In addition,

Corepointe argues that any lack of prejudice it will suffer is not dispositive. Id. at 8–9. Finally, Corepointe contends that White has failed to demonstrate that she has a meritorious defense. Id. at 9–15.

Upon consideration, the Court finds good cause to set aside the default. First, it does not appear that the default was willful, given that counsel provides by declaration that he failed to forward the complaint to his staff for calendaring purposes and essentially forgot about it. See, e.g., Mineola Holdings, Inc. v. Stoney

Brook Fin. P’ship Ltd., No. 6:20-cv-2081-Orl-78LRH, 2021 WL 2954269, at *2 (M.D. Fla. Jan.⁴, 2021) (setting aside Clerk’s default where counsel inadvertently miscalendared the deadline for responding to the complaint); Auto-Owners Ins. Co. v. Env’t House Wrap, Inc., No. 3:17-cv-817-J-34PDB, 2018 WL 6680937, at *1 (M.D. Fla. Oct. 11, 2018) (finding good cause to set aside Clerk’s default caused by “human error”).³ Second, there does not appear to be any prejudice to Corepointe by setting aside the Clerk’s default, and Corepointe does not argue otherwise. See, e.g., Worldwide Distribution, LLLP v. Everlotus Indus. Corp., No. 3:16-cv-26-J-39JBT,

2016 WL 8999083, at *2 (M.D. Fla. May 20, 2016) (granting motion to set aside Clerk’s default where, among other things, the plaintiff made no argument nor sufficient showing that it would be unduly prejudiced if the default were set aside). Third, although Corepointe argues that White cannot assert a meritorious defense,

Corepointe cites no legal authority demonstrating that White’s asserted defenses would fail as a matter of law, and the Court declines to delve into the actual merits of any such defenses at this time. See, e.g., Tindal v. Def. Tax Grp. Inc., No. 8:19-CV-

2907-T-60JSS, 2021 WL 4133749, at *3 (M.D. Fla. Sept. 10, 2021) (finding arguments as to actual merits of defense were better addressed at a later stage of litigation, rather than on motion to vacate Clerk’s default); Worldwide Distribution, LLLP, 2016 WL 8999083, at *2 (declining to reach the actual merits of a defense on a motion to vacate Clerk’s default). See also Retina-X Studios, LLC v. ADVAA, LLC, 303 F.R.D. 642, 657 (M.D. Fla. 2014) (“[W]hether a defense is meritorious does not depend on

LESLIE³ AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties