No individual or business owner wants to be sued. But, that unfortunate situation is made even worse when news of being sued is followed by learning that, unbeknownst to you, the lawsuit was actually filed some time ago and you have had a “default” entered against you. Of the many questions that would surely race to your mind, the first are likely to be: what is a default? and how do I address the default?
When a defendant is sued in any court, if he fails to file a responsive pleading or otherwise defend the lawsuit within the time proscribed by the Florida Rules of Civil Procedure, then the court or the clerk of the court may enter a default against him. However, the default is only half a win for a plaintiff: it is not a judgment entitling the plaintiff to relief. The plaintiff must still file for and obtain a final judgment from the Court. But, the default means that, absent certain circumstances or facts, the defendant is no longer allowed to participate in, or defend, the lawsuit.
If the individual or business owner in the example above discovers the default before final judgment, then he will want to try and have the default vacated, or canceled. However, as stated above, in order to vacate a default, the defaulted party must show that certain circumstances or facts existed and were the reason he did not answer or otherwise respond to the Complaint.
Under Florida law, the defaulted party must show: 1) that the failure to respond was the result of excusable neglect; 2) that a meritorious defense to the underlying suit exists; and 3) that he diligently moved to address the default upon learning of it. See generally Florida Aviation Academy, Dewkat Aviation, Inc. v. Charter Air Center, Inc., 449 So. 2d 350 (Fla. 1st DCA 1984); Faulkner v. Faulkner, 629 So. 2d 1100 (Fla. 1st DCA 1994).
Excusable neglect is a fairly simply concept: the defaulted defendant must show that his failure to participate in the lawsuit—his “neglect”—was excusable, or for an acceptable reason. Excusable neglect is found where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry, or “any other of the foibles to which human nature is heir.” Somero v. Hendry Gen. Hosp., 467 So.2d 1103 (Fla. 4th DCA 1985). Excusable neglect has been found where:
- the defendant inadvertently clipped the summons and complaint to the back of a file and replaced in the filing cabinet, and thus failed to respond to it;
- a German citizen located in Germany failed to respond, likely due to the fact that, being of German origin, he was unaware of his obligations, and it was not clear to what extent he complied, or was able to comply, with those obligations; and
- where corporate counsel filed an answer for the corporation but inadvertently failed to file a pleading for another individual defendant, who was then defaulted.
Representing the other side of the coin, neglect in the following scenarios was found to have been inexcusable:
- where the defendant was a fugitive from justice and consequently was unable to contact his attorney;
- where the president of the defendant corporation “thought” an attorney had responded to a complaint but subsequently received notice of plaintiff’s intention to seek a default and still did not take any action in response to that notice;
- where the defendant merely alleged that failure to act resulted from excusable neglect without providing any supporting factual basis; and
- where the defendant made a bare allegation that default resulted from misfiling or misplacing a complaint, where it also appeared that the default status had been called to the defendants’ attention on several occasions.
Further, the defendant’s excusable neglect must be proven by sworn statements or affidavits; unsworn assertions are insufficient. Faulkner v. Faulkner, 629 So. 2d 1100 (Fla. 1st DCA 1994).
In order to establish a purely legal meritorious defense, it must be established by pleading or affidavit; a general denial will be insufficient. If the defendant relies on a factual defense to obtain relief from the default, the ultimate facts of such defense must be set forth in a verified answer, a sworn motion or affidavit, or by other competent evidence. A conclusory assertion that a meritorious defense exists is insufficient. See generally Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA 2004).
In order to establish the due diligence element, a defendant must move quickly to vacate the default upon learning of its existence. While there is no bright-line test for demonstrating due diligence, courts have found it unreasonable for defendants to wait six months, three months, and even five weeks to initiate efforts to have the default vacated. On the other hand, where defendants moved to vacate the default within six, seven, and even fifteen days, the courts in those cases found that the defendants had demonstrated the requisite due diligence. See generally Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 302 (Fla. 2d DCA 2004). However, even though courts have found due diligence demonstrated when the defendant acted after a week or more, it is generally best practice not to wait even that long, and to instead act immediately to have the default vacated upon learning of it.
While it can be overcome, a default is a serious development in any case. Upon learning that default has been entered against him, the defendant cannot let it go unaddressed, or serious consequences will arise. However, a timely motion to vacate the default can usually resolve the issue, so long as the defendant can demonstrate excusable neglect, a meritorious defense, and due diligence in responding to the default.