United States District Court, M.D. Florida, Tampa Division
JASON SWORD and ROBERT ROSS, on behalf of themselves and on behalf of all other similarly situated, Plaintiffs,
DOLPHIN MOVING SYSTEMS, INC. and GREGORY DOLPHIN, Defendants.
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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).
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.
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).
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.
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