JOHN E. STEELE, District Judge.
This matter comes before the Court on defendant Anthony McCarty's Motion to Set Aside Default (Doc. #159) filed on January 27, 2015. Plaintiff filed a Response in Opposition (Doc. #165) on January 30, 2015. Defendant Anthony McCarty seeks to set aside the Clerk's Entry of Default (Doc. #70) entered against him on August 8, 2014, as he requires additional time to consult with an attorney to discuss the sufficiency of the complaint and the evidence for appeal. Defendant further requests sufficient time to consult with an accountant regarding the calculation of damages. As defendant is currently pro se, the Court will construe the motion as also seeking to set aside the default judgment. Although plaintiff argues that the motion may be denied for failure to confer under the Local Rules,
On August 8, 2014, the Magistrate Judge found that service of process was properly effected on the Secretary of State for the State of Florida, Doc. #56-1, as defendant Anthony McCarty's agent, because he was a former resident who had left the state to an unknown address,
On October 24, 2014, Mr. McCarty filed a Motion for Extension of Time to Oppose Final Judgment After Default (Doc. #106) seeking additional time to respond to plaintiff's request for a default judgment, and also filed a Motion for Protective Order and or to Modify Plaintiff's Notice of Deposition (Doc. #107) as he was located in Ohio. On October 31, 2014, plaintiff filed a Motion to Compel Discovery and Deem Requests Admitted (Doc. #109) as Mr. McCarty failed to respond to discovery. On December 8, 2014, the Magistrate Judge granted the extension of time to respond, and granted plaintiff's request to compel discovery from Mr. McCarty in response to interrogatories. (Docs. ## 124-125.) A month later, the Magistrate Judge granted the request for a protective order so that Mr. McCarty could not be compelled to travel from Ohio to Fort Myers for deposition. (Doc. #138.) McCarty failed to respond to the request for a default judgment within the extended period of time. Additionally, Mr. McCarty failed to produce his written responses, or the requested discovery documents, and plaintiff sought sanctions. (Doc. #134.)
On January 12, 2015, the Court issued an Opinion and Order (Doc. #148) granting plaintiff's Motion for Final Judgment After Default Against Anthony McCarty (Doc. #99) as to Count IX for fraudulent inducement, and denying plaintiff's request for sanctions as moot. However, the Clerk was directed to withhold the entry of judgment pending a separate and later determination of damages. On January 20, 2015, plaintiff filed a Motion In Support of Damages Against McCarty Per Court Order (Doc. #157) seeking $406,656.16 in damages against Mr. McCarty. As of today, no response has been filed to the Motion regarding damages.
"The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Fed. R. Civ. P. 55(c). Under Rule 60(b), the Court may relieve a party from a final judgment or order based on excusable neglect, fraud, or any other reason justifying relief. Fed. R. Civ. P. 60(b). The standard applied for setting aside a default judgment, excusable neglect, is "more rigorous" than the standard for setting aside an entry of default, for good cause.
The good cause standard applied to set aside a default is not a precise formula, but some factors to consider include whether: the default was willful, McCarty acted promptly to correct the default, plaintiff would be prejudiced, McCarty has a meritorious defense, and even whether the public interest is implicated.
The Court finds that Mr. McCarty clearly was aware of the impending litigation after receiving cease and desist letters, and after reaching an agreement with plaintiff on behalf of Vivid, LLC. Mr. McCarty's argument that he was not properly or timely served is also somewhat disingenuous because he filed an appearance quickly after entry of the Order granting a default. Defendant is choosing when and how he wishes to participate by appearing to file a motion for protection but otherwise failing to produce discovery or responding to motions for sanctions. The Court finds that service of process was proper and the prejudice to plaintiff is great. The Court finds no good cause shown to set aside the default.
To set aside a default judgment, McCarty must establish excusable neglect by showing: "(1) [he] had a meritorious defense that might have affected the outcome; (2) granting the motion would not result in prejudice to the non-defaulting party; and (3) a good reason existed for failing to reply to the complaint."
In granting the default judgment for fraudulent inducement, the Court deemed admitted the allegations in Count IX, and found that:
(Doc. #148, pp. 10-11.) Defendant has not put forward any argument to support excusable neglect, and more importantly at no time has defendant indicated whether he has a meritorious defense to the allegations that would affect the outcome on Count IX. The Court finds that the prejudice to plaintiff at this stage of the proceedings would be substantial, and no good reason exists why defendant could not have responded to the Amended Complaint. Defendant appeared several times, as convenient, but has taken no effort to actively participate in litigation or cooperate with discovery. The motion to set aside the default judgment will be denied.
Although Mr. McCarty's request to set aside the default and/or the default judgment is due to be denied, this does not preclude him from appearing and defending against the amount of damages. Plaintiff's Motion in Support of Damages Against McCarty Per Court Order (Doc. #157) remains pending and the Court will provide additional time to respond to this motion.
Pursuant to Fed. R. Civ. P. 55(b)(2)
Accordingly, it is hereby
Fed. R. Civ. P. 55(b)(2).