WILLIAM H. EVANS, JR., PETITIONER,
v.
RYAN SHAPIRO, ET AL., RESPONDENTS
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The court held that a motion to dismiss filed before a default is entered precludes the clerk from entering a default.
Petitioner sought a writ of mandamus to compel the clerk to enter a default and the trial court to enter a default judgment against defendants. The de…
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Petitioner, plaintiff below, seeks a writ of mandamus compelling: (i) the clerk of the lower court to enter a default, and (ii) the trial court to enter a default judgment, both against those defendants who were served with petitioner’s complaint in late December 2016.1
While the trial court docket reveals that petitioner filed his motion for default and default judgment on February 13, 2017, the defendants filed a motion to dismiss three days later, on February 16, 2017.2 The defendants’ filing of this February 16, 2017 motion to dismiss—prior to the clerk entering any default—precludes the clerk from entering a default. See Fla. R. Civ. P. 1.500(c) (“A party may plead or otherwise defend at any time before default is entered.”); 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.”).
Mandamus relief is therefore improper here. See Dep’t of Health & Rehab. Servs. v. Hartsfield, 399 So.2d 1019, 1020 (Fla. 1st DCA 1981) (“In order to show entitlement to the extraordinary writ of mandamus, the petitioner must demonstrate a clear legal right on his part, an indisputable legal duty on the part of the respondents, and that no other adequate remedy exists.”).
Petition denied.
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Authorities Cited
- Harvard v. Singletary, 733 So. 2d 1020 (Fla. 1999)
- State v. Hartsfield, 399 So. 2d 1019 (Fla. 1st DCA 1981)
- Carder v. Pelican Cove W. Homeowners Ass'n, Inc., 595 So. 2d 174 (Fla. 5th DCA 1992)