Perez v. Faith Without Works, Inc.

Middle District of Florida, flmd-8:2016-cv-02077

ORDER denying {{7}} Motion for Extension of Time to File Motion for Clerk's Default. Signed by Magistrate Judge Amanda Arnold Sansone on 11/29/2016. (BEE)

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PageID 30 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION NELCI PEREZ, Plaintiffs, v. Case No.: 8:16-cv-2077-T-27AAS FAITH WITHOUT WORKS, INC., a Florida for Profit Corporation, Defendant. ______________________________________/ ORDER Before the Court is Plaintiff Nelci Perez's Motion for Extension of Time to File Motion for Clerk's Default (Doc. 7). On July 19, 2016, Plaintiff filed a Complaint against Defendant Faith Without Works, Inc., for unpaid overtime compensation under the Fair Labor Standards Act, as amended, 29 U.S.C. 216(b) ("FLSA"). (Doc. 1). The Clerk of Court issued a summons that same day. (Doc. 2). On November 4, 2016, after Plaintiff failed to timely file a notice of service, the Honorable Steven D. Merryday, United States District Judge, entered an Order directing Plaintiff to move for an extension of time to serve Defendant and to show good cause for failing to timely do so. (Doc. 5). On November 8, 2016, Plaintiff filed a Notice attaching an Affidavit of Service that indicated that the process server served Defendant with the Summons and Complaint on July 26, 2016. (Doc. 6). In addition, Plaintiff filed the instant Motion requesting that the Court extend the time to file a motion for clerk's default by thirty days so that the parties may continue to engage in settlement negotiations. (Doc. 7). 1 PageID 31 As an initial matter, the Court notes that the Federal Rules of Civil Procedure do not impose a specific time limitation for filing a motion for clerk's default. In addition, pursuant to Federal Rule of Civil Procedure 55: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. Fed. R. Civ. P. 55(a) (emphasis added). However, according to the Motion, "the parties would like to continue to discuss the potential for early settlement." (Doc. 7, p. 2). Therefore, given the ongoing settlement discussions, Defendant has not failed to defend this action and a default would not be appropriate.1 Accordingly and upon consideration, it is ORDERED that Plaintiff's Motion for Extension of Time to File Motion for Clerk's Default (Doc. 7) is DENIED. DONE AND ORDERED in Tampa, Florida on this 29th day of November, 2016. 1 The Court further notes that Plaintiff's Motion states that he is "not opposed to an extension of time for the Defendant to file a response so that the parties could continue to discuss potential settlement." (Doc. 7, pp. 1-2). If Defendant seeks an extension of time to file a response to the Complaint, it must do so in accordance with the applicable rules. This Order shall not serve to extend any deadlines imposed by the Federal Rules of Civil Procedure. 2