If a party fails to timely respond to a properly served complaint, Florida law permits the entry of a default, and a default judgment, against the defaulting party. A default effectively terminates the rights of the party to defend against the allegations in the complaint. After the entry of default, the court may enter a default judgment against the defaulting party. A default judgment may require the defaulting party to pay money damages or to do (or not to do) something.
When a party suffers a default or default judgment for failing to timely respond to a properly served complaint, the defaulting party may request the court to set aside (i.e., vacate) the default or default judgment. Rule 1.500(d) of the Florida Rules of Civil Procedure provides that “[t]he court may set aside a default, and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with rule 1.540(b).” Arguably, because Rule 1.500(d) seemingly recognizes the distinction between a default and a judgment entered thereon, the court is free to exercise its discretion and set aside the default, particularly given long-standing law holding that courts should liberally set aside defaults so that lawsuits may be determined on their merits. However, when a default judgment has been entered, the defaulting party must prove (1) that its failure to timely respond to the complaint is due to excusable neglect, (2) that it has meritorious defenses to the complaint, and (3) that it acted with due diligence to seek relief from the default judgment. There is extensive case law addressing whether and how a defaulting party may meet its burden to demonstrate each of these three elements.
If you have defaulted for the failure to timely respond to a properly served complaint and seek to set aside a default or default judgment, you should act swiftly to assert your rights. A defaulting party must file an appropriate motion seeking relief from the court. Please contact Joel Ewusiak for legal assistance with your specific matter.