The Second District has provided wayward defendants in Florida a new tool to dig out of default judgments. Indeed, it is easier than proving excusable neglect and a meritorious defense.
In Makes & Models Magazine, Inv. v. Web Offset Printing Co., Inc., the parties were at odds over printing services. The plaintiff brought suit in Hillsborough County and then, for unstated reasons, filed another lawsuit two months later in Pinellas County for a dispute arising out of the same events. The defendant reportedly did not get the second lawsuit from its agent for service of process and the motion for clerk’s default was sent to the wrong address. They were clued in when the motion for default judgment was sent to the correct address. Their motion to vacate, however, was denied because it was not verified nor accompanied by an affidavit to establish excusable neglect. It is undisputed that the plaintiff knew the defendant had counsel and was defending itself in the first action (again, which arose out of the same events).
Back in 2008, the Second District ruled in U.S. Bank National Association v. Lloyd that “a trial court should vacate an ex parte default when the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact defendant’s counsel prior to seeking default.” Thus, the test is whether (a) defendant is known to have counsel and (2) defendant is known to dispute the allegations. In that situation, plaintiff must serve the defendant with notice of the application for default.
Notably, if the defendant can establish these facts, it does NOT need to provide evidence of a meritorious defense or excusable neglect.
Here, given the similarity between the lawsuits, the court held that the plaintiff knew the defendant had counsel and was defending similar issues in the first case. Default was vacated.
The Panel (Villanti, Silberman and LaRose) concluded with the “tsk tsk” observation that a literal reading of the rules must give way to civility and professionalism when one party is aware the opposing party has counsel and intends to defend. ”Although these concepts are not difficult to grasp, post-Lloyd, a party’s responsibility when faced with similar circumstances should be clear.”