HERMAN
v.
THE MR. COOPER GROUP INC.

M.D. Fla. | 2024-04-09
No. 2:23-cv-948
2006 WL 2935252 2024 FFL 8991 District Court, M.D. Florida (2024) Positive Treatment
Cited by 1 case

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Synopsis

Plaintiffs sought a clerk's default against defendant Mr. Cooper Group Inc. for failure to respond to the complaint. The court denied the motion because defendant had already appeared and defended itself by filing a Rule 12(e) motion for more definite statement, which constitutes a legal defense precluding default.

Holding

A clerk's default is not proper when a defendant has appeared and defended itself by filing a Rule 12(e) motion. The filing of such a motion constitutes an attempt to defend against the allegations and therefore precludes a default judgment.

Key Quotes

“A Clerk's default is not proper on such facts.”

Establishes the core holding that default cannot be entered when defendant has appeared and filed a defensive motion

Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.

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Facts & Procedural History

Plaintiffs Kathleen Herman and Jeffrey Ghiazza filed a motion for clerk's default against defendant the Mr. Cooper Group, Inc. Defendant had filed a m…

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Opinion of the Court

Plaintiffs Kathleen Herman and Jeffrey Ghiazza seek a Clerk's default against Defendant the Mr. Cooper Group, Inc. (Doc. 73.) The motion is DENIED because Defendant has appeared and defended itself by filing a motion under Fed. R. Civ. P. 12(e). A Clerk's default is not proper on such facts. See, e.g., Wagner v. Potter, No. 2:03CV511FTM-99DNF, 2006 WL 2935252, at *1 (M.D. Fla. Oct. 13, 2006) (denying motion for default where “the government appeared by filing a Rule 12(e) Motion for More Definite Statement"); 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.

A Motion for more Definite Statement clearly is an attempt by Defendants to defend against the allegations in the Complaint.").

ORDERED in Fort Myers, Florida on April 8, 2024.

Kyle C. Dudek United States Magistrate Judge

Copies: All Parties of Record

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Citator

Cited By

  • Herman v. The Mr. Cooper Grp. Inc., 2006 WL 2935252 (M.D. Fla. 2024)
    …Group, Inc. (Doc. 73.) The motion is DENIED because Defendant has appeared and defended itself by filing a motion under Fed. R. Civ. P. 12(e). A Clerk’s default is not proper on such facts. See, e.g., Wagner v. Potter, No. 2:03CV511FTM-99DNF, 2006 WL 2935252, at *1 (M.D. Fla. Oct. 13, 2006) (denying motion for default where “the government appeared by filing a Rule 12(e) Motion for More Definite Statement”); Montecalvo v. Brandon Auto Clinic, Inc., No. 8:07-CV-851-T-30MSS, 2007 WL 2155581, at…

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