United States District Court, S.D. Florida, Miami Division
ORDER DENYING MOTION TO SET ASIDE DEFAULT AND DEFAULT
JUDGMENT AND ORDER DENYING MOTION FOR HEARING
CAUSE came before the Court upon Defendant Danilo
Monzon's Motion to Set Aside Default or Default Judgment
(D.E. 13), filed on June 26, 2019, and Plaintiff American
Credit Acceptance, LLC s Motion to Set Hearing on Danilo
Monzon's Motion to Set Aside Default Final Judgment (D.E.
16), on August 15. 2019.
COURT has considered the motions, Plaintiffs Opposition to
Set Aside Default, the pertinent portions of the record, and
is otherwise fully advised in the premises.
December 28, 2018, Plaintiff filed a 4-count complaint
against Defendants Danilo Monzon and The Magic Auto Sales
Corp. f/k/a Monzon Auto Sales, Inc., alleging breach of
contract, fraud, aiding and abetting fraud, and negligent
misrepresentation. Plaintiff perfected service of the
complaint and the summons on both Defendants. After neither
Defendant timely responded to the complaint, Plaintiff filed
a motion for Clerk's Default against both Defendants. On
March 7, 2019, the Clerk of Court entered default against
months later, on May 9, 2019, Plaintiff filed a Motion for
Default Judgment against both Defendants, supported by
affidavits concerning the value of the judgment. Again,
neither Defendant timely responded, and consequently the
Court entered Default Final Judgment against both Defendants
on May 31, 2019.
on June 26, 2019, more than 3 weeks after the Court entered
Default Final Judgment, Defendant Danilo Monzon
("Monzon") made his first appearance in the case by
filing a Motion to Set Aside Default or Default Judgment (the
"Motion"). Plaintiff timely filed an Opposition to
the Motion, but Monzon did not file a reply in support of his
Motion. Despite being situated procedurally similar to
Monzon, Defendant The Magic Auto Sales Corp. f/k/a Monzon
Auto Sales, Inc. still has not appeared in this matter, and
accordingly, is not subject to this Order.
party seeking to set aside a court's entry of default
judgment 'must proceed under Federal Rule of Civil
Procedure 60(b).'" Davila v. Alcami Grp.,
Inc., No. 12-23168-CIV-MORENO, 2013 WL 1934168, at *3
(S.D. Fla. May 9, 2013) (quoting J & M Assocs., Inc.
v. Callahan, No. 07-0883-CG-C, 2011 WL 5553696 (S.D.
Ala. Nov. 15, 2011)). Under Rule 60(b), the Court may set
aside a default judgment on grounds of "mistake,
inadvertence, surprise, or excusable neglect," or
"any other reason that justifies relief." See
Fed.R.Civ.P. 60(b)(1), (6). By its very nature, Rule 60(b)
"seeks to strike a delicate balance between two
countervailing impulses: the desire to preserve the finality
of judgments and the 'incessant command of the
court's conscience that justice be done in light of all
the facts.'" Grant v. Pottinger-Gibson, No.
0:15-cv-61150-KMM, 2016 WL 867111, at *1 (S.D. Fla. Mar. 7,
2016), aff'd, 725 Fed.Appx. 772 (11th Cir. 2018) (quoting
Aldana v. Del Monte Fresh Produce N.A., Inc., 741
F.3d 1349, 1355 (11th Cir. 2014)). "While Rule 60(b)
generally requires liberal application in cases of default
judgments, this policy does not apply in cases of willful
misconduct, carelessness, or negligence." Id.
aside a default judgment for mistake, inadvertence, or
excusable neglect under Rule 60(b)(1), the defaulting party
must show: (1) it had a meritorious defense that might have
affected the outcome; (2) good reason existed for failure to
respond to the complaint; and (3) granting the motion would
not prejudice the opposing party. Davila, 2013 WL
1934168, at *3 (citing Rivas v. Denovus Corp., Ltd.,
No. 10-22070, 2010 WL 4102926 (S.D. Fla. Oct. 18,
2010)). "The moving party must establish a meritorious
defense 'by a clear and definite recitation of the
facts.'" Grant, 2016 WL 867111, at *2
(quoting Gibbs v. Air Canada, 810 F.2d 1529, 1538
(11th Cir. 1987)). Moreover, "[a] general denial of the
plaintiffs claims contained in an answer or another pleading
is not sufficient." Id. (quoting S.E.C. v.
Simmons, 241 Fed.Appx. 660, 664 (11th Cir. 2007)).
Rather, the moving party "must make an affirmative
showing of a defense that is likely to be successful."
Id. (quoting Solaroll Shade & Shutter Corp.
v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (1 lth
Cir. 1986)). But, importantly, "[n]either ignorance nor
carelessness on the part of a litigant or his attorney
provide grounds for relief under Rule 60(b)(1)."
Id. (quoting Ben Sager Chemicals Int'l, Inc.
v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir.
Court finds the Motion fails to make the requisite showings
to set aside default judgment under Rule 60(b) because
Monzon: (1) does not adequately assert any meritorious
defenses that might affect the outcome of the case; (2) does
not demonstrate that good reason existed for his failure to
timely respond; and (3) does not explain why setting aside
the default would not prejudice Plaintiff. The Court
addresses each reason in turn.
the Motion fails to show Monzon has a meritorious defense
that might affect the outcome of this case. While Monzon
asserts "there are meritorious defenses to this
action" and he "request[s] an opportunity to
present same" (D.E. 13 at ¶ 6), this single
conclusory statement, by itself, does not rise to make an
"affirmative showing of a defense that is likely to be
successful." Grant, 2016 WL 867111, at *2
(quoting Solaroll Shade & Shutter Corp., 803
F.2d at 1133). Monzon attaches a proposed answer to his
Motion, but the proposed answer-which totals less than one
and one-half pages and simply denies knowledge of, or
affirmatively denies all but five of Plaintiff s allegations
(See D.E. 13-1)-fares no better. This is because the
law requires that a party moving to set aside a default
judgment establish a meritorious defense by a "clear and
definite recitation of the facts." See Grant,
2016 WL 867111, at *2 (quoting Gibbs, 810 F.2d at
1538). And so, Monzon's general denials of Plaintiff s
allegations are not sufficient to, and certainly do not,
establish a meritorious defense. Id. (quoting
Simmons, 241 Fed.Appx. at 664).
proposed answer is also noticeably deficient because it does
not assert a single affirmative defense. (See
generally D.E. 13-1.) And the closest Monzon comes to
asserting any affirmative defense is the singular statement,
found in his Motion, that he "has multiple witness
wherein the Co Defendant is sole owner of the Company and
bought out the Interest of DANILO MONZON." (D.E. 13 at
¶ 4.) But this assertion, without more, does not explain
how any alleged "buy out" disclaims Monzon from all
liability. Nor does this assertion discount Plaintiffs
specific claim against Monzon in Count III for aiding and
abetting fraud in conjunction with Defendant The Magic Auto
Sales Corp. f/k/a Monzon Auto Sales, Inc.
Court also notes that despite the gaps in Monzon's
request for relief-which Plaintiff highlights in its
Opposition-Monzon did not file a reply that further explained
or supplemented the arguments advanced in his
Motion. Put simply, the Motion and proposed answer
fail entirely to "make an affirmative showing of a
defense that is likely to be successful."