Chapter 1-4 Defaults

• Jurisdiction: United States

1-4 Defaults

Each defendant is afforded 20 days from the date on which they are served to respond to the Complaint.²⁷ When a defendant fails to timely respond, the legal remedy is entry of a default. When a default is entered (either by the clerk or by the court), all wellpled factual allegations in the complaint are deemed admitted.²⁸ Legal conclusions, however, are not admitted by a default.²⁹

1-4:1 Clerk Defaults

If no paper of any kind is filed or served by a defendant within twenty (20) days of service, the clerk of court may enter a default against that party, and thereafter the court may enter a judgment at any time.³⁰ While it is proper for a clerk of court to enter a default as early as the twenty-first (21st) day following service of process, if a response is received before the twenty-sixth (26th) day, the default must be vacated.³¹

1-4:2 Judicial Defaults

When a defendant has filed any paper (including a request for extension of time or a notice of appearance by an attorney), the entry of a clerk's default is prevented. When this occurs, failure to plead or otherwise defend against the action is still subject to default, but now the plaintiff must petition the court for a judicial default.³² In this case, the defendant is entitled to notice of the application for a default, but is not necessarily entitled to a hearing.³³

1-4:3 Default Judgments

Default judgments may be entered following default without notice to a defendant only if all damages are liquidated, meaning they are readily ascertained from the pleadings, arithmetical calculations, or by application of definite rules of law.³⁴ If the action involves unliquidated damages, the defendant is entitled to notice prior to a final hearing or trial, even though they've been defaulted.³⁵

1-4:4 Vacating Default

In certain circumstances, the Florida Rules of Civil Procedure provide for vacating a default.³⁶ The decision to set aside a default must be based on a finding that: (1) the failure to respond was the result of excusable neglect; (2) the defendant has meritorious defenses, and (3) the defendant demonstrated due diligence in acting upon the default when it was discovered.³⁷ A trial court's ruling on a request to vacate a default will not be disturbed on appeal unless the trial court abused its discretion.³⁸

1-4:4.1 Excusable Neglect

Excusable neglect will be found when the failure to timely respond to a complaint results from clerical or secretarial errors, reasonable misunderstanding, an error in the system utilized by a party to track deadlines or assign tasks, or other human errors.³⁹ Misunderstanding of the law or the consequences of failing to defend do not constitute excusable neglect.⁴⁰ In order to demonstrate that excusable neglect caused the default, the circumstances must be set forth in an affidavit or sworn statement.⁴¹

1-4:4.2 Meritorious Defenses

A defendant seeking to vacate the default must file a motion attaching a proposed answer with affirmative defenses, demonstrating that if the default is vacated, the defendant will have meritorious defenses to assert.⁴² The mere assertion that meritorious defenses exist is insufficient.⁴³

1-4:4.3 Due Diligence

Due diligence requires a defendant to show that prompt action was taken to vacate...