So a lawsuit has been filed and the Respondent/Defendant has been served. However, what happens when the Respondent/Defendant fails to submit a response? When the Respondent/Defendant fails to respond, the Petitioner/Plaintiff may have the Clerk of Court move with the entry of a Default against the Respondent/Defendant.

Specifically, pursuant to Rule 1.500(a), “[w]hen a party against whom affirmative relief is sought has failed to file or serve any document in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such document.” Fla. R. Civ. P. 1.500(a). In the other words, the Florida Rules of Civil Procedure permit the Petitioner/Plaintiff to pursue a Clerk’s Default when the Respondent/Defendant has failed to file any paper with the Court.

Once a Clerk’s Default is entered, it is not uncommon for a Respondent/Defendant to then decide to participate in the lawsuit and file a response with the Court. However, for the Court to consider the response, the already defaulted Respondent/Defendant must first pursue a motion to vacate or set aside the clerk’s default and have the motion set for a hearing.

Pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure:

On motion and upon such terms as are just, the court may relieve a party … from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether … intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) [as well as for when] the judgment or decree is void. …

Fla. R. Civ. P. 1.540(b).

A proper motion to vacate or set aside the clerk’s default must contain allegations of excusable neglect, a meritorious defense and due diligence. See Schwartz v. Bus. Cards Tomorrow, Inc., 644 So. 2d 611, 611 (Fla. 4th DCA 1994) (stating that for a default to be set aside, the trial court must determine (1) whether the defendant has demonstrated excusable neglect in failing to respond; (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief.)

So what constitutes an excusable neglect, a meritorious defense and due diligence?

An excusable neglect would include clerical errors, reasonable misunderstandings, as well as circumstances beyond the party’s control.

For example, a secretary’s misfiling of the summons and complaint has been found to constitute an excusable neglect. Bland v. Viking Fire Protection, Inc., 454 So. 2d 763, 763 (Fla. 2d DCA 1984) (internal citations omitted).  A clerical or secretarial error has also been found to constitute excusable neglect where there has been no substantial prejudice to the plaintiff. Broward Cty. v. Perdue, 432 So. 2d 742, 743 (Fla. 4th DCA 1983).

In order to establish excusable neglect, a party must file an affidavit or a sworn statement that sets forth the facts explaining or justifying the mistake or inadvertence. See Armando, S.C.L. v. Plazza, 658 So. 2d 1169, 1169 (Fla. 2d DCA 1995). An affidavit that sited a serious family illness for the lack of a timely response to a lawsuit was found to establish an excusable neglect. See id. It is important to note that in the absence of sworn statements or affidavits of excusable neglect, the motion to vacate/set aside would be deemed defective. Unsworn statements would likewise not suffice.

As to the meritorious defense, the motion should contain allegations of facts, which, if proven at trial, would constitute a complete defense. Westinghouse Elevator Co., A Div. of Westinghouse Elec. Corp. v. DFS Constr. Co., 438 So. 2d 125, 126-27 (Fla. 2d DCA 1983).

Finally, as to the due diligence prong, the Respondent/Defendant must move timely with the motion to vacate/set aside the default. A delay in the filing of the motion may require the Respondent/Defendant to prove an excusable neglect on the actual delay to avert a denial of the relief.

The due diligence element is typically determined by examining the particular facts of each case. Conidaris v. Credit Alliance Corp., 558 So. 2d 523, 524 (Fla. 5th DCA 1990). In considering a motion to set aside a default, courts must evaluate the extent of and the reasons for the delay. Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So. 2d 746, 747 (Fla. 3d DCA 1992). If the delay is not unreasonable under the circumstances, then the default should be vacated. Id. “A litigant who timely moves to set aside a default, asserting a credible explanation of human error, is entitled to be heard on the merits.”  Lindell Motors, Inc. v. Morgan, 727 So. 2d 1112, 1113 (Fla. 2d DCA 1999).

It should be noted that Florida courts do prefer to decide cases on the merits of the claims rather than on a technicality. J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 69 (Fla. 4th DCA 2008). See also Cunningham v. White, 390 So. 2d 467, 468 (Fla. 3d DCA 1980) (stating that “[t]he courts of this state have generally been quite liberal in setting aside default judgment[s], and any reasonable doubt should be resolved in favor of granting the motion in order to permit a trial on the merits.”). Under appropriate circumstances courts should liberally set aside defaults so that lawsuits may be determined on their merits. Bland, 454 So. 2d at 763 (internal citations omitted).

Consequently, there is a strong presumption to allow the Respondent/Defendant relief from a default. In fact, there is a “principle of liberality in setting aside defaults so that lawsuits may be decided on their merits.” Lindell Motors, 727 So. 2d at 1113. To be relieved of a default, a defendant must demonstrate excusable neglect, a meritorious defense, and due diligence in seeking relief. Coquina Beach Club Condominium Ass’n Inc. v. Wagner, 813 So. 2d 1061, 1063 (Fla. 2d DCA 2002) (quoting Ponderosa, Inc. v. Stephens, 539 So. 2d 1162, 1163 (Fla. 2d DCA 1989)).

Thus, if your motion to vacate/set aside contains allegations of excusable neglect, meritorious defense and due diligence, the court is likely to grant you the motion. It would only be in the absence of all three of these elements that the motion may be denied. It should further be noted that a denial of the motion does not equate to an abuse of discretion as discretion is abused when “the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382, So. 2d 1197, 1203 (Fla. 1980) (internal citations omitted).

Ultimately, though the courts do not like to decide cases on procedural technicalities, when seeking relief from a default, you should still do so timely with a proper motion that contains all the requisite facts to enable the court to grant you the motion so that the cause may be determined on the merits.