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Florida Second DCA reverses trial court order setting aside default judgment against defendant, finds that defendant failed to prove excusable neglect for not filing answer to complaint

On November 14, 2018, in Chernoff Diamond & Co. v. Gallin, No. 2D18-1891, the Florida Second DCA reversed the trial court’s order setting aside a default judgment against the defendant, concluding that the defendant failed to prove excusable neglect for not filing an answer to the plaintiff’s complaint. Quoting from Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 301 (Fla. 2d DCA 2004), the Second DCA opined that to set aside the default judgment, the defendant needed to show: “(1) that the failure to file a responsive pleading was the result of excusable neglect; (2) that it has a meritorious defense; and (3) that it acted with due diligence in seeking relief from the default.” Given that the evidence showed that the defendant’s president simply put the complaint in a drawer, left for vacation and subsequently forgot about the lawsuit until he received the notice of entry of a final judgment, the court concluded that the defendant had not met his burden of proving excusable neglect. The Second DCA cited several precedents in support of its ruling. See Bethesda Mem'l Hosp., Inc. v. Laska, 977 So. 2d 804, 807 (Fla. 4th DCA 2008) ("[A] default will not be set aside where the defaulted party or his attorney (1) simply forgot or (2) intentionally ignored the necessity to take appropriate action; that is to say, where the conduct could reasonably be characterized as partaking of gross negligence or as constituting a willful and intentional refusal to act." (quoting Jeyanandarajan v. Freedman, 863 So. 2d 432, 433-34 (Fla. 4th DCA 2003)); see, e.g., Orlando Partners, Ltd. v. Classic Tour Lines, 492 So. 2d 1117, 1117 (Fla. 3d DCA 1986) (holding there was no excusable neglect where wife stated she told her husband about receipt of summons but forgot to tell him about hearing on motion for entry of default and husband did not recall knowledge of summons).

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