209 WEST OLYMPIA, LLC
v.
WESTCHESTER SURPLUS LINES INSURANCE COMPANY
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Plaintiff sought clerk's default against defendant for failure to respond, but the court denied the motion because defendant had appeared and was actively defending by seeking to enforce a settlement agreement. The court emphasized the strong policy favoring resolution on the merits over entry of default.
A clerk's default is not proper when a defendant has appeared and is defending against the claims, even if the defendant has not filed a formal answer. The rule requires failure to respond or defend against allegations, not merely failure to answer.
“The Rule does not contemplate the entry of default only upon a defendant's failure to answer, but rather upon a defendant's failure to respond or defend against the allegations in a complaint.”
Establishes the proper legal standard for when default may be entered—failure to respond or defend, not merely failure to answer.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff 209 West Olympia, LLC filed a motion for clerk's default against Defendant Westchester Surplus Lines Insurance Company. The defendant had ap…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Plaintiff 209 West Olympia, LLC moves for a clerk's default under Fed. R. Civ. P. 55(a). (Doc. 48.) But a clerk's default is not proper on these facts because Defendant has appeared and is defending against the claims by seeking to enforce an alleged settlement agreement. See, e.g., Montecalvo v. Brandon Auto Clinic, Inc., No. 8:07-CV-851-T-30MSS, 2007 WL 2155581, at *1 (M.D. Fla. July 26, 2007) (“The Rule does not contemplate the entry of default only upon a defendant's failure to answer, but rather upon a defendant's failure to respond or defend against the allegations in a complaint."). Because “defaults are seen with disfavor [given] the strong policy of determining cases on their merits,” Fla. Physician's Ins. Co., Inc. v. Ehlers, 8 F. 3d 780, 783 (11th Cir. 1993), Plaintiffs motion (Doc. 48) is
DENIED. The Court will set a deadline for a responsive pleading after the pending Report & Recommendation is addressed.
ORDERED in Fort Myers, Florida on February 3, 2025.
Kyle C. Dudek United States Magistrate Judge