United States District Court, S.D. Florida
ORDER ON MOTION TO SET ASIDE DEFAULT JUDGMENT AND
MOTION TO RE-APPOINT COURT ORDERED MEDIATION
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendant Sean R.
Kirtz's (“Defendant” or “Kirtz”)
Motion to Set Aside Default Judgment, ECF No.  (the
“Motion”), and Motion to Re-Appoint Court Ordered
Mediation, ECF No. , filed on June 20, 2019. Plaintiff
Andre Johnsen filed a response to the Motion, ECF No. 
(“Response”), and to Kirtz's Motion to
Re-Appoint Court Ordered Mediation, ECF No. . The Court
has carefully considered the Motion and Response, the record
in this case and the applicable law, and is otherwise fully
advised. For the reasons set forth below, the Motion is
denied, and the Motion to Re-Appoint Court Ordered Mediation
is denied as moot.
initiated this action on August 2, 2018. See ECF No.
. Defendants were duly served with process on August 30,
2018. See ECF No. . Thereafter, a Clerk's
default was entered against Defendant ICO Services, Inc. on
October 1, 2018. ECF No. . Defendant Kirtz filed a motion to
dismiss, ECF No. , which this Court denied, ECF No. ,
requiring that he file an answer on or before November 1,
2018. Rather than file an answer, Kirtz filed a notice of
appeal of the Court's order denying his motion to
dismiss, ECF No. , which the Eleventh Circuit dismissed.
See ECF No. . During the pendency of the appeal,
Kirtz failed to comply with this Court's orders, and
therefore, the Court directed the clerk to enter default
against him. ECF No. . Plaintiff moved for default
judgment against both Defendants, and the Court entered a
default judgment and awarded damages. See ECF Nos.
, . Shortly thereafter, Kirtz filed another appeal of
the Court's order denying his motion to dismiss, the
Court's paperless order denying his second motion to
dismiss, ECF No. , and the final default judgment.
See ECF No. . The Eleventh Circuit also
dismissed Kirtz's second appeal. See ECF No.
Motion, Kirtz now requests that the Court set aside the
default judgment and allow this case to proceed on the
merits. Although Kirtz cites no legal basis for the relief he
seeks in the Motion, the Court construes the Motion as filed
pursuant to Rule 60 of the Federal Rules of Civil Procedure.
Rule 60, the Court may grant relief from a judgment or order
upon several bases, including “mistake, inadvertence,
surprise, or excusable neglect; newly discovered evidence . .
.; fraud . . .; the judgment is void; the judgment has been
satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or any other reason
that justifies relief.” See Fed. R. Civ. P.
60(b)(1)-(6). Whether to grant relief pursuant to Rule 60(b)
is ultimately a matter of discretion. Aldana v. Del Monte
Fresh Produce, N.A., Inc., 741 F.3d 1349, 1355 (11th
Cir. 2014) (citing Cano v. Baker, 435 F.3d 1337,
1342 (11th Cir. 2006) (internal citation and quotations
Motion, Kirtz asserts that his previous failure to comply
with Court orders arose as a result of a combination of his
attorney's lack of professional diligence and a medical
condition that was exacerbated by this case. However, as
Plaintiff points out, no attorney entered an appearance on
behalf of Kirtz, who has been proceeding pro se in
this case since filing his first motion to dismiss. Moreover,
although Kirtz asserts that “there was no willful
disrespect from the defendant previously, ” the record
belies that assertion. There is no indication, nor does Kirtz
contend, that he did not receive notice of the Court's
orders being entered in this case, including the Court's
Order Providing Instructions to Pro Se Litigant, ECF
No. . In addition, while the Court is sympathetic to
Kirtz's medical condition, he has not indicated how this
condition prevented him from complying with Court orders.
Indeed, despite his medical condition, Kirtz filed numerous
documents in this case, including two motions to dismiss, a
motion to strike, ECF No. , and two appeals.
result, even construed liberally, as required of pro
se filings, the Motion fails to present circumstances,
argument, or evidence that would allow for the relief Kirtz
seeks. Accordingly, the Motion, ECF No.
, is DENIED, and the Motion to
Re-Appoint Court Ordered Mediation, ECF No.
, is DENIED AS MOOT.
 Despite an appearance by counsel,
Defendant ICO Services, Inc. failed to engage in these