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Florida Third DCA rules that default could not be entered against defendant because defendant's motion to dismiss was filed before clerk's entry of default

On August 30, 2017, in Evans v. Shapiro, No. 3D17-1807, the Florida Third DCA denied a plaintiff’s petition for a writ of mandamus compelling the clerk of the trial court to enter a default against the defendant for failure to timely file a pleading or motion in response to plaintiff’s complaint. The plaintiff filed the default motion on February 13, 2017. Three days later, before the clerk had entered the default, the defendant filed a motion to dismiss. The Third DCA noted that under Fla. R. Civ. P. 1.500(c), a party may plead or otherwise defend at any time before default is entered. The DCA also cited Carder v. Pelican Cove W. Homeowners Ass’n, Inc., 595 So. 2d 174, 175 (Fla. 5th DCA 1992) (“The filing of the motion to dismiss precludes any subsequent entry of default in respect to any complaint pending at that time.”)
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