United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
S. SNEED UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion to Delay
Filing of Motion for Judgment after Default and also
Court's Entry of Final Judgment Against Defendant Asem
Hasan (“Motion”). (Dkt. 21.) For the reasons that
follow, the Court recommends that Plaintiff's Motion be
January 19, 2018, Plaintiff filed her Complaint against
Defendants Asem Hasan and KH Food & Deli, Inc. requesting
injunctive relief pursuant to the Americans with Disabilities
Act, 42 U.S.C. § 1281 (“ADA”). (Dkt. 1.) The
Complaint was served on Defendant Asem Hasan on February 6,
2018. (Dkt. 9.) Plaintiff subsequently voluntarily dismissed
KH Food & Deli, Inc. and added Defendant Roadrunner
Clearwater, Inc. as the correct tenant of the facility. (Dkt.
16.) On March 2, 2018, Plaintiff filed a Motion for
Clerk's Entry of Default Against Defendant Asem Hasan as
his time to answer or otherwise respond to the Complaint
elapsed. (Dkt. 10.) The Clerk therefore entered a default
against Asem Hasan. (Dkt. 11.) Plaintiff now requests that
the Court delay entry of final judgment against Asem Hasan in
order to avoid the possibility of inconsistent verdicts.
party fails to plead or otherwise defend a judgment for
affirmative relief, the clerk of the court must enter a
default against the party against whom the judgment was
sought. Fed.R.Civ.P. 55(a); see also Fed. R. Civ. P.
12(a)(1)(A)(i) (providing that a defendant must serve an
answer within twenty-one days after being served with the
summons and complaint). If the plaintiff's claim is for a
sum certain or an ascertainable sum, then the clerk, upon the
plaintiff's request and upon an affidavit of the amount
due, must enter a judgment by default. Fed.R.Civ.P. 55(b)(1).
In all other cases, the party entitled to judgment must apply
to the district court for a default judgment. Fed.R.Civ.P.
55(b)(2). A court may enter a default judgment against a
defendant who never appears or answers a complaint,
“for in such circumstances the case never has been
placed at issue.” Solaroll Shade & Shutter
Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1134
(11th Cir. 1986). Federal Rule of Civil Procedure Rule 54(b)
provides that where multiple parties are involved, “the
court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for
delay.” Fed.R.Civ.P. 54(b).
requests that the Court delay entry of a final judgment
against Asem Hasan. (Dkt. 21.) Plaintiff argues that the
entry of a judgment now against one Defendant, before the
action against the remaining Defendant is resolved, creates
the possibility of inconsistent outcomes. (Id. at
2.) Under Middle District of Florida Local Rule 1.07(b), when
service of process has been effected but no appearance or
response is made within the time provided by Rule 12, the
party effecting service shall “proceed without delay to
apply for a judgment pursuant to Rule 55(b), Fed.R.Civ.P.,
failing which the case shall be subject to dismissal 60 days
after such service without notice and without prejudice;
provided, however, such time may be extended by order of the
Court on reasonable application with good cause shown.”
M.D. Fla. Local R. 1.07(b). Thus, Plaintiff essentially seeks
an extension to move for entry of a final judgment against
Asem Hasan in order to avoid dismissal.
defendant's default does not in itself warrant the court
in entering a default judgment.” Nishimatsu Constr.
Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th
Cir. 1975). “When a default is entered against one
defendant in a multi-defendant case, the preferred practice
is for the court to withhold granting a default judgment
until the trial of the action on the merits against the
remaining defendants.” Essex Ins. Co. v.
Moore, 2011 WL 3235685 at *1 (M.D. Fla. July 28, 2011)
(quoting Northland Ins. Co. v. Cailu Title Corp.,
204 F.R.D. 327, 330 (W.D. Mich. 2000)). Specifically, in
cases involving more than one defendant, a judgment of
liability should not be entered against a defaulting party
alleged to be jointly liable with other defendants until the
matter has been adjudicated with regard to all defendants.
Frow v. De La Vega, 82 U.S. 552, 554 (1872)
(“[A] final decree on the merits against the defaulting
defendant alone, pending the continuance of the cause, would
be incongruous and illegal.”). The Eleventh Circuit
Court of Appeals has extended this prohibition against
logically inconsistent judgments to other cases where
“defendants are similarly situated, but not jointly
liable.” Gulf Coast Fans, Inc. v. Midwest Elecs.
Importers, Inc., 740 F.2d 1499, 1512 (11th Cir. 1984).
Consequently, in this Circuit, it is “sound
policy” that “when defendants are similarly
situated, but not jointly liable, judgment should not be
entered against a defaulting defendant if the other defendant
prevails on the merits.” Id. (citing 10A
Charles Alan Wright & Arthur R. Miller, Fed. Prac. &
Proc. Civ. § 2690; 6 Moore's Federal Practice ¶
55.06). Thus, entry of a default judgment against a defaulted
party is inappropriate in a case involving multiple
defendants who are jointly liable or similarly situated.
may be similarly situated when they have closely related
defenses. Mayorga v. Stamp Concrete & Pavers,
Inc., 13-81274-CIV, 2015 WL 3556972, at *2 (S.D. Fla.
June 4, 2015) (finding defendants similarly situated where
plaintiff asserted the same claim for overtime wages against
both defendants and defendants' defenses were identical);
Machado v. Mega Travel USA Corp., 14-21037-CIV, 2015
WL 12803629, at *2 (S.D. Fla. Sept. 1, 2015), report and
recommendation adopted, 14-21037-CIV, 2015 WL 12803630
(S.D. Fla. Sept. 22, 2015) (“The Eleventh Circuit has
applied Frow to cases where defendants are jointly
and severally liable, as well as where defendants have
closely related defenses.”); Rodriguez v.
Guacamole's Authentic Mexican Food & More, LLC,
11-62527-CIV, 2012 WL 718688, at *2-3 (S.D. Fla. Mar. 6,
2012); 10A Charles Alan Wright & Arthur R. Miller, Fed.
Prac. & Proc. Civ. § 2690 (4th ed.) (“Although
the rule developed in the Frow case applies when the
liability is joint and several, it probably can be extended
to situations in which joint liability is not at issue but
several defendants have closely related defenses.”);
see also PNC Bank, Nat'l Ass'n v. Lucmaur,
LLC, 6:14-CV-248-ORL-37KRS, 2014 WL 12629787, at *1-2
(M.D. Fla. Aug. 27, 2014) (finding entering a default
judgment against a defendant risked inconsistent judgments
because the liability of the defendant was derivative of
another defendant actively defending itself); Bank of the
Ozarks v. Arco Cmty. Outreach Coal., Inc., CV 212-017,
2013 WL 164421, at *2 (S.D. Ga. Jan. 15, 2013) (finding
defendants similarly situated where the liability of
guarantor defendants was derivative of another
consideration, the Court agrees with Plaintiff that entry of
a default judgment against Asem Hasan before the action is
resolved with regard to Roadrunner Clearwater, Inc. creates
the possibility of inconsistent outcomes. Plaintiff does not
allege that the Defendants are jointly liable. See
Dkt. 1. However, the Defendants are similarly situated as
Plaintiff has made the same claims against both Defendants
with regard to the facility that is the subject of Plaintiff
s ADA allegations. For example, Plaintiff asserts the
Defendants have discriminated against Plaintiff and others
with disabilities, by denying access to, and full and equal
enjoyment of the goods, services, facilities, privileges,
advantages and/or accommodations of the Facility, as
prohibited by 42 U.S.C. § 12182, et seq., and will
continue to discriminate against Plaintiff and others with
disabilities unless and until Defendants are compelled to
remove all physical barriers that exist at the Facility,
including those specifically set forth herein, and make the
Facility accessible to and usable by persons with
disabilities, including Plaintiff.
(Dkt. 1 ¶ 16.) If Plaintiff does not prevail in her
claims against Defendant Roadrunner Clearwater, Inc.,
entering a default judgment against Defendant Asem Hasan may
risk an inconsistent verdict. This district “has been
sensitive to the risk of inconsistent judgments.”
Gov't Employees Ins. Co. v. KJ Chiropractic Ctr.
LLC, 6:12-CV-1138-ORL, 2014 WL 5426565, at *2 (M.D. Fla.
Oct. 22, 2014). Thus, to avoid inconsistent verdicts, it is
most prudent to allow Plaintiff an extension to move for a
default judgment and enter a final judgment as to all parties
after the claims against Defendant Roadrunner Clearwater,
Inc. are resolved.
it is RECOMMENDED that Plaintiffs Motion to
Delay Filing of Motion for Judgment after Default and also
Court's Entry of Final Judgment ...