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Sword v. Dolphin Moving Systems, Inc.

United States District Court, M.D. Florida, Tampa Division

January 3, 2020

JASON SWORD and ROBERT ROSS, on behalf of themselves and on behalf of all other similarly situated, Plaintiffs,



         Before the Court is Defendants' Verified Motion to Set Aside and Vacate Default Judgment (Dkt. 25), and Plaintiffs' Response in Opposition (Dkt. 27). After careful consideration of the submissions of the parties, the applicable law, and the entire file, the Court concludes the motion is due to be denied.


         Plaintiffs initiated this action against their employer Dolphin Moving Systems, Inc. (“Dolphin Moving”) alleging a claim for unpaid minimum wages under the Fair Labor Standards Act(“FLSA”), 29 U.S.C. § 201 et seq. Dkt. 1. Dolphin Moving was served with the complaint on May 7, 2019. Dkt. 8. A clerk's default was entered against the corporate Defendant on May 30, 2019. Dkt. 10. Plaintiffs amended the complaint to add Defendant Gregory Dolphin Sr. (“Dolphin Sr.”) individually (Dkt. 11), who was served with process on June 26, 2019 (Dkt. 13). A clerk's default was entered against Dolphin Sr. on July 19, 2019. Dkt. 15.

         Plaintiffs then moved for final default judgment against both Defendants, which the Court granted. Dkt. 19. A final judgment was entered against both Defendants on August 27, 2019, in the amount of $47, 760.00. Dkt. 20. Plaintiffs sought a writ of garnishment against Defendants' accounts at Wells Fargo Bank, which the Court granted. Dkts. 21, 22. The writ was issued October 10, 2019. Dkt. 23. Wells Fargo filed its answer on October 24, 2019. Dkt. 24.

         On November 20, 2019, Defendants filed this motion to vacate the default judgment citing Federal Rule of Civil Procedure 60(b). Dkt. 25. Defendant Dolphin Sr. explains that his son Gregory Dolphin, Jr. (“Dolphin Jr.”) is responsible for the day-to-day operations of the corporation. Dkt. 25 ¶ 2. Dolphin Sr. asserts that he “did not believe he had to participate in the suit because it was being handled by his son.” Dkt. 25 ¶ 15. He asserts the failure of both Defendants to respond is based on “miscommunication” between the father and son about the status of the suit. Dkt. 25 ¶ 15. Defendants now request the default judgment be set aside based on excusable neglect. Dkt. 25 ¶¶ 10-18.


         The court may set aside a default judgment under Rule 60(b). Fed.R.Civ.P. 55(c). Rule 60(b) allows relief from final judgment by establishing mistake, inadvertence, or excusable neglect. Fed.R.Civ.P. 60(b)(1). The defaulting party may gain relief by showing: (1) it had a meritorious defense that might have affected the outcome; (2) granting the motion would not result in prejudice to the non-defaulting party; and (3) a good reason existed for failing to reply to the complaint. Sloss Indus. Corp. v. Eurisol, 488 F.3d 922 (11th Cir. 2007) (citing In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003). Additional equitable factors to be considered in determining the existence of excusable neglect are (1) “the danger of prejudice to the opposing party, ” (2) “the length of the delay and its potential impact on judicial proceedings, ” (3) “the reason for the delay, including whether it was within the reasonable control of the movant, ” (4) “and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993).

         The Supreme Court in Pioneer reiterated the meaning of “excusable neglect” in the context of Rule 60(b) as neglect beyond the movant's reasonable control. Id. at 393. The neglect is excusable if the movant was prevented from acting. Id.

         This Court will apply the foundational three-factor test and the additional equitable factors set forth in Pioneer to the totality of the circumstances surrounding the Defendants' neglect. See Friedman v. Schiano, 777 Fed.Appx. 324, 333 n.15 (11th Cir. 2019) (distinguishing Safari Programs, Inc. v. CollectA Int'l Ltd., 686 Fed.Appx. 737, 743-44 (11th Cir. 2017), which reversed district court for failure to consider all relevant factors in denying 60(b) motion to set aside default).


         The analysis of excusable neglect begins with some telling observations about what the facts show Dolphin Sr. knew. Dolphin Sr. personally received the initial summons and complaint as registered agent of Defendant Dolphin Moving in May 2019. Dkt. 8. Plaintiffs amended the complaint solely to add Dolphin Sr. as a party and served Dolphin Sr. through his wife in June 2019. Dkt. 13. Dolphin Sr. never claims lack of notice of this action against himself individually and his company. Any insinuation he was uninformed about this action is belied by the record - he was served twice, once as registered agent and once individually.[1]

         Meritorious Defense

         As defenses, Dolphin Sr. and his company deny Plaintiffs worked the number of hours claimed. Even assuming Plaintiffs did work those hours, Defendants posit, the “amounts claimed may truly be overtime wages . . . for which [Plaintiffs] are not owed under the Motor Carrier Act exception.” Dkt. 25 ¶ 12. Finally, Defendants ...

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