Acosta et al v. Republic Services of Florida, LP

Middle District of Florida, flmd-8:2017-cv-00940

Unopposed MOTION to Vacate {{7}} Clerk's Entry of Default by Republic Services of Florida, LP.

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UNITED STATE DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ALBERTO ACOSTA, et al.,)) Plaintiff,)) v.)) Case No. 8:17-cv-00940-JSM-MAP REPUBLIC SERVICES OF FLORIDA,) LP,)) Defendant. DEFENDANT REPUBLIC SERVICES OF FLORIDA LP’S UNOPPOSED MOTION TO VACATE CLERK’S DEFAULT Defendant REPUBLIC SERVICES OF FLORIDA, LP ("Republic" or "Defendant"), by and through its undersigned counsel and pursuant to Federal Rule of Civil Procedure 55(c), files this Unopposed Motion to Vacate Clerk’s Default and Supporting Memorandum of Law (the "Motion"), and states as follows: 1. Plaintiff Alberto Acosta, et al., filed his one count Complaint on April 20, 2017, wherein he alleges a violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. D.E. 1. 2. The Summons and Complaint were received by Republic’s registered agent, CT Corporation System (the "Registered Agent") in Plantation, Florida, on April 24, 2017. See D.E. 3. 3. Republic’s response to the Complaint was therefore due on May 15, 2017. 4. The Registered Agent transmitted the Summons and Complaint to Republic’s legal department before the responsive pleading deadline passed, but through unintentional oversight the Summons and Complaint were not processed such that outside counsel could be retained and respond timely to the Complaint. 5. On May 16, 2017, Plaintiff filed a Motion for Entry of Clerk’s Default (the "Motion for Default"), and a corresponding Clerk’s Default was entered on May 17, 2017. D.E. 6, 7. 6. Defendant learned of the Motion for Default and Clerk’s Default on May 17, 2017, retained outside counsel, and asked counsel to request that the Court vacate the default on the grounds set forth in this motion. MEMORANDUM OF LAW Federal Rule of Civil Procedure 55(c), states that, "[f]or good cause shown the court may set aside an entry of default." See also Jones v. Harrell, 858 F.2d 667, 669 (11th Cir. 1988) (stating where a judgment has not been entered, the court shall set aside a default upon a showing of good cause instead of following the more stringent standard under Rule 60(b)). Defaults are not favored, and doubts should be resolved in favor of permitting a hearing on the merits. Gulf Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499, 1510 (11th Cir. 1984). "It should be pointed out that as a general proposition, courts do not favor disposition of legitimate disputes by default and lean over backwards to relieve defaults if the party seeking the relief was diligent and had a legitimate defense against the claim asserted." Select Management Holdings, Inc. v. Taylor, 216 B.R. 985, 987 (Bank. M.D. Fla. 1997) (emphasis added). The Eleventh Circuit has recognized that while good cause "is not susceptible to a precise formula," courts generally assess four factors. 2 Import, S.A. v. Compania Dominicana, 88 F.3d 948, 951 (11th Cir. 1996). These factors are: whether the default was culpable or willful, whether the defaulting party acted quickly to correct the entry of default, whether setting it aside would prejudice the adversary, and whether the defaulting party presents a meritorious defense. Id. In this case, analyzing each of these factors demonstrates that the Clerk’s Default should be vacated. First, Defendant’s default was not culpable or willful. The prevailing standard contemplates that litigants will make mistakes in handling service and responding to initial pleadings, as Defendant did in this action; such mistakes, however, without more, do not rise to willfulness. Griffin IT Media, Inc. v. Intelligentz Corp., No. 07-80535-CIV, 2008 WL 162754, at *2–3 (S.D. Fla. Jan. 16, 2008) (quoting Compania Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir.1996 ("Most failures to follow court orders are not'willful’ in the sense of flaunting an intentional disrespect for the judicial process. However, when a litigant has been given ample opportunity to comply with court orders but fails to effect any compliance, the result may be deemed willful."); see id. (vacating clerk’s default under similar circumstances); Rodriguez v. Brim's Food, Inc., No. 13-CV-20600, 2013 WL 3147348, at *3 (S.D. Fla. June 19, 2013) (same); Jones, 858 F.2d at 668-669 (same); Cannon v. Lansing Bldg. Products, Inc., 2007 WL 4557844 (M.D. Ala. 2007) (same); Gibson v. Vincent, 2007 WL 1576344, at *2 (N.D. Fla. 2007) (same). Second, when Republic learned of the default, it acted expeditiously in securing counsel and entering a motion to vacate. Griffin, 2008 WL 162754, at *2 (S.D.Fla. Jan.16 2008) (finding that a motion to vacate filed less than three weeks after the clerk's default was a reasonable time to respond). 3 Third, vacating the Clerk’s Default will not prejudice Plaintiff, as he does not object to the relief requested in this Motion; this action has been pending for fewer than thirty days; discovery has not commenced; the pleadings remain open; and no scheduling order has been entered. See e.g., Griffin, 2008 WL 162754, at *2 ("Delay in adjudicating a plaintiff's claim does not qualify as sufficient prejudice under Rule 55. Instead, [a plaintiff] would have to show that the delay would result in a loss of evidence, increased opportunities for fraud, or discovery difficulties."); Hinson v. Webster Indus., 240 F.R.D. 687, 693 (M.D. Ala. 2007) ("[P]ermitting a decision on the merits in this case will not prejudice Plaintiff, particularly given that this case is in its early stages."). With regard to a meritorious defense, the "[l]ikelihood of success is not the measure." Griffin, 2008 WL 162754, at *3 (citing Keegel v. Key West & Carribean Trading Co., 627 F.2d 372, 374 (D.C.Cir.1980)). "Instead, where the defendant has provided by clear statements a "hint of a suggestion" that his case has merit that is sufficient." Id. (citing Moldwood Corp. v. Stutts, 410 F.2d 351, 352 (5th Cir.1969)). Indeed, Defendant has meritorious defenses to this suit and intends to prosecute this action on the basis that it paid Plaintiff in full compliance with FLSA. As such, its willingness to litigate the action weighs strongly in favor in vacating the clerk’s default. See Saperstein v. Palestinian Auth., No. 04– 20225–CIV, 2008 WL4467535, at *8 (S.D.Fla. Sep. 29, 2008) (setting aside a default judgment because, among other reasons, defendants expressed their willingness to actively participate in the litigation). WHEREFORE, for the above stated reasons, Defendant respectfully requests that this Court grant the foregoing relief. 4 DATED this 17th day of May, 2017. Respectfully submitted, BY:/s/Ben K. Schott Ben K. Schott, Esquire Florida Bar No.: 107756 Email: bschott@littler.com/s/Anthony J. Hall____ Anthony J. Hall, Esquire Florida Bar No.: 0040924 LITTLER MENDELSON, P.C. 111 N. Magnolia Avenue, Suite 1250 Orlando, Florida 32801-2366 Telephone: (407) 393-2900 Facsimile: (407) 393-2929 Attorneys for Defendant REPUBLIC SERVICES OF FLORIDA, LP CERTIFICATE OF GOOD FAITH CONFERENCE In compliance with Local Rule 3.01(g), the undersigned hereby certifies that it conferred in a good faith effort to resolve this matter, and that Plaintiff's counsel, Cynthia Gonzalez, Esq. and Luis R. Amadeo, Esq., represented via email to the undersigned that Plaintiff does not oppose the relief requested in this Motion. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 17th day of May, 2017, I electronically filed the foregoing with the Clerk of the Court by using the E-File system and a correct copy of the foregoing has been furnished electronic mail to: Cynthia Gonzalez, Esq. and Luis R. Amadeo, Cynthia Gonzalez, P.A., 4023 N. Armenia Ave., Ste. 240, Tampa, FL 33607./s/Ben K. Schott Ben K. Schott Esquire 5