United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Plaintiff's
Motion to Set Aside Final Judgment, Allow Amendment to
Complaint to Include the Proper Party Defendant, and to
Dismiss Defendant Bhanuben G. Patel Without Prejudice, ECF
No.  (“Motion”). Plaintiff Patricia Kennedy
(“Plaintiff”) filed this action against Defendant
Bhanuben G. Patel (“Defendant”) on May 8, 2019,
pursuant to the Americans With Disabilities Act, 42 U.S.C.
§ 12181 et seq. (the “ADA”). ECF
No.  (“Complaint”). When Defendant failed to
file a timely answer or respond to Plaintiff's Complaint,
Plaintiff moved for entry of a Clerk's default, ECF No.
, which was entered on June 28, 2019, ECF No. . On
July 17, 2019, the Court entered a Default Final Judgment
against Defendant. ECF No. . Plaintiff's Motion now
seeks to vacate the Default Final Judgment, reopen this case,
dismiss Defendant without prejudice, and file an amended
complaint naming the correct defendant. ECF No. . For the
reasons explained below, Plaintiff's Motion is granted in
part and denied in part.
to Rule 60, the Court may grant relief from a judgment or
order based upon “mistake, inadvertence, surprise, or
excusable neglect.” See Fed. R. Civ. P.
60(b)(1). “By its very nature, the rule 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.'”
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401
(5th Cir.1981) (quoting Bankers Mortg. Co. v. United
States, 423 F.2d 73, 77 (5th Cir.1970)). “The
determination of what constitutes excusable neglect is
generally an equitable one, taking into account the totality
of the circumstances surrounding the party's
omission.” Sloss Indus. Corp. v. Eurisol, 488
F.3d 922, 934 (11th Cir. 2007).
instant Motion, Plaintiff states that, subsequent to the
entry of Default Final Judgment, she learned that the county
records indicated incorrect information as to the owner of
the property at issue in this action. ECF No.  at 2.
These county records have since been corrected to reflect
that Gayatri Corporation (“Gayatri”) - not the
named Defendant - owns the allegedly noncompliant property.
Id. Plaintiff now seeks to relieve Defendant from
the Default Final Judgment under Rule 60(b)(1), based on this
mistake regarding the correct property owner. Fed.R.Civ.P.
60(b)(1). Accordingly, Plaintiff moves to vacate the Default
Final Judgment, reopen this case, dismiss the improperly
named Defendant without prejudice, and amend her Complaint to
reflect Gayatri as the proper defendant. Id.
review, the Court finds that the circumstances here warrant
vacating the Default Final Judgment against Defendant,
pursuant to Rule 60(b)(1), and dismissing the case against
Defendant without prejudice. However, the Court denies
Plaintiff's request to re-open the case and amend her
Complaint to name the proper defendant under Rule 15(a)(2).
In her Complaint, Plaintiff represented in good faith that
Defendant owned the property at issue. ECF No. . To the
extent that this representation is now understood to be
incorrect, Plaintiff may file a new action against
it is ORDERED AND ADJUDGED as follows:
1. Plaintiff s Motion, ECF No. , is
GRANTED IN PART AND DENIED IN PART.
2. The Default Final Judgment, ECF No. ,
3. The above-styled case against Defendant Bhanuben G. Patel
is DISMISSED WITHOUT PREJUDICE.
4. Plaintiff s request to re-open the case and file an
amended complaint naming the proper defendant is
5. Plaintiffs Motion for Attorney Fees, ECF No.
, is denied as MOOT.
6. To the extent not otherwise disposed of, all pending
motions are denied as MOOT and all deadlines