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OPPOSITION TO DEFENDANT MOTION TO VACATE DEFAULT This matter involves the fraudulent acts of Defendant (Defendant).

Defendant was properly served at her place of employment with co-defendant, the law offices of. A responsive pleading was due on May 15, 2012. Defendant did not make a timely response to the complaint. Accordingly, on May 17, 2012, Plaintiff moved and received a Clerks default against the Defendant. Defendant was given proper notice of the clerks default. On May 29, 2012, the undersigned received Defendants unsworn Motion to Vacate Default. Florida Rule of Civil Procedure 1.500(a)(2010) provides that a clerk may enter a default against a party who fails to file any papers or pleadings. The court may set aside this default, however, under Rule 1.540(b). Rule 1.540(b) provides that if the terms are just, the court may relieve a party from a final order for mistake, inadvertence, surprise, or excusable neglect. To set aside the default pursuant to this rule, the court must determine: (1) whether the defendant has demonstrated excusable neglect in failing to respond; (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, had demonstrated due diligence in seeking relief. Halpern v. House, 949 So.2d 1155, 1157 (Fla. 4t h DCA 2007)(citation omitted). Upon receipt of Defendant Garcias motion to vacate default, the undersigned pointed out to the Defendant the deficiencies in her motion and provided her with the applicable law via email. Notwithstanding the above, Defendant caused her motion to be set for hearing by the associate in the law firm where she works, who is her co-defendant in this action.

This is not an instance of a minor and one-time misstep by an unsophisticated pro se Defendant, rather a pattern of delay repeated by her and her employer, the law office of. who is a co-defendant in this action as well as two other co-defendants who are avoiding service, i.e., her boss,; all of whom are well versed in the law. Plaintiff argues strenuously that Defendant Garcia has failed to demonstrate the likelihood of a meritorious defense and thus it is within the discretion of this Court to so find and deny Defendants Motion to Vacate Default. I. DEFENDANTS MOTION SHOULD BE DENIED BECAUSE IT IS LEGALLY DEFICIENT IN THAT IT IS UNSWORN AND FAILS TO ESTABLISH ANY OF THE PRONGS TO SET ASIDE THE DEFAULT a. DEFENDANT HAS FAILED TO MAKE ANY SHOWING THAT HER FAILURE TO FILE A RESPONSIVE PLEADING RESULTED FROM THE INADVERTENCE OR EXCUSABLE NEGLECT. A motion to set aside default should state the reasons for failure to plead and the legal and factual basis for the defense to the claim. Excusable neglect must be proven by sworn statements or affidavits. See Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998). Due diligence is likewise established with evidence, which includes a sworn affidavit. Cedar Mountain Estates, LLC v. Loan One, LLC, 4 So.3d 15, 17 (Fla. 5th DCA 2009). Here the motion is unverified and neither an affidavit nor a responsive pleading was submitted along with it. The burden rests on the defaulting party to prove it has a legal excuse for failing to respond to the plaintiff's complaint. See Hornblower v. Cobb, 932 So. 2d 402, 406 (Fla. 2d DCA 2006); Stone-Rich Props. v. Britt, 706 So. 2d 330, 332 (Fla. 2d DCA 1998). In the instant case, Defendant did not file a sworn affidavit with the court nor was her motion verified. Because Defendant neither filed an affidavit nor a sworn motion,

her motion is insufficient, as a matter of law, to satisfy the element of excusable neglect. See Rivera v. Dep't of Revenue, 899 So. 2d 1265, 1267 (Fla. 2d DCA 2005) (noting excusable neglect cannot be established if a party offers no facts to support a finding of legal excuse for failure to comply with the rules of civil procedure). Therefore, an order granting Defendants motion to set aside the default would be tantamount to an abuse of discretion. b. DEFENDANT HAS FAILED TO PLEAD A MERITORIOUS DEFENSE As stated above, in order to have a default set aside the moving party has the burden to demonstrate excusable neglect, meritorious defense, and due diligence. Fla.R.Civ.P.

1.540(b). Even if Plaintiff concedes the issue of excusable neglect and due diligence, Defendants motion is nonetheless defective as she has failed to demonstrate a meritorious defense to Plaintiffs Complaint. A meritorious defense is established where a "proposed answer [is] attached to its motion to vacate, which answer sets out in detail a number of affirmative defenses." Fortune Ins. Co. v. Sanchez, 490 So.2d (Fla. 3d DCA 1986). See also, Perry v. University Cabs, Inc., 344 So.2d 914 (Fla.3d DCA 1977); Tremblay v. Marck, 378 So.2d 855 (Fla.4th DCA 1979), cert. denied, 389 So.2d 1116 (Fla. 1980). To establish a meritorious defense, the Defendant must tender either a defensive pleading showing the defense or a sworn motion or affidavit stating the facts supporting the meritorious defense. Hill v. Murphy, 872 So.2d 919, 921 (Fla. 2d DCA 2003) (citing Coquina Beach Club Condo. Assn v. Wagner, 813 So.2d 1061, 1064 (Fla. 2d DCA 2002)). Plaintiff moved for default two days after a response to the Complaint was due.1
1

See Jimenez v. Ratine, 954 So.2d 706, 707 (Fla. 2d DCA 2007) (To swear means to declare on oath that the facts alleged are true.); 92.525, Fla. Stat. (2011) (verification).

Defendants unsworn motion does not offer any meritorious defense to Plaintiffs causes of action against her which include fraud. It is axiomatic that [a] motion is not a pleading. Sardon Foundation v. New Horizons Service Dogs, Inc., 852 So.2d 416, 421 (Fla. 5th DCA 2003). Notably, Defendant has not offered any sworn testimony to support her motion or filed a responsive pleading contemporaneously with her motion even though she was advised that such would be necessary if she sought to vacate her default. Significantly, Defendant was put on notice by the undersigned that her motion would be opposed in its present form. Thus, her refusal to amend her motion to comply with the rules is unfathomable. Certainly it does not require legal training or even any great degree of intelligence to understand what is required of her to obtain the relief that she seeks. Her pro se status should not give her unbridled license to delay these proceedings by filing unsupportable and inadequate motions. Hence, a denial of Defendants motion to vacate default would not be the result of inartful pleading or lack of legal training but rather her failure to adhere to readily comprehended requirements of which she is well-aware. Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits. See Greer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004). However, in order to have a default set aside the moving party has the burden to demonstrate excusable neglect, a meritorious defense, and due diligence. See Geer, 880 So.2d at 720. Although there is a preference that cases be

decided on their merits, the case law does allow for defaults to stand when the party opposing the default has not offered any meritorious defense to support a vacatur of same or has failed to meet one of the three prongs. See E.G. Systems, Inc. v David, 969 So.2d 1026 (Fla. 2d DCA 2007) cert. denied. (No abuse of discretion where defendants failed to

set forth a meritorious defense of any kind).

Here, the Defendant was given ample

opportunity to correct her defective motion. Had she done so, this matter could have been resolved by agreed order; instead, Defendant, through her employer, set the motion for hearing unilaterally, for the sole purpose of unnecessarily delaying these proceedings and increasing the litigation costs to the Plaintiff. Where there is a total lack of evidence to establish one or more of the three requirements to set aside a default as there are here, a gross abuse of discretion occurs when a default is vacated. Allstate Floridian Insurance Co. v. Ronco Inventions, LLC, 890 So.2d 300, 304 (Fla. 2d DCA 2004) (where moving partys affidavit provided no evidence showing due diligence, court held that the trial court grossly abused its discretion in finding that Appellees acted with due diligence); and Rivera v. Department of Revenue, 899 So.2d 1265, 1266 (Fla. 2d DCA 2005) (Because the record is devoid of evidence proving either excusable neglect or a meritorious defense, we hold that the circuit court grossly abused its discretion). In this case, there is no evidence in Defendants motion nor was a responsive pleading attached to it which contain a denial that could ostensibly allege a meritorious defense so as to create an issue of fact which would support a grant of relief. Defendant is a legally sophisticated pro se Defendant, herself a legal secretary/paralegal for attorney Alberto N. Moris, who is a co-defendant in this suit, abundantly aware of the consequences of technical errors. Indeed, her co-defendant sent a motion for enlargement of time to the undersigned via fax on May 12, 2012. In contrast, Defendant Garcia made no attempt to seek an extension to respond to the complaint prior to the date that a response was due. Further, common sense dictates that she should have faxed her motion for enlargement of time, particularly as she was presumably requesting it the day before her response was due.

After the default was entered, she waited until she received the notice of default to set it aside. Even after she was informed of the proper manner in which to request a vacatur of the default, she refused to properly request it and instead had the associate in the law firm where she works set it for hearing. Accordingly, no persuasive reason has been posited why Defendant should be accorded special consideration under the circumstances. It is well established that an application for relief from default must be accompanied by an affidavit or sworn motion. Relief is discretionary and must be based on a showing of (1) excusable neglect, (2) meritorious defense and (3) due diligence. Ryder Truck Rental, Inc. v. Patterson, 633 so.2d 539 (Fla. 2d DCA 1994) (defendant demonstrated that the default was due to clerical error, that it had a meritorious defense and that it acted with due diligence once the error was discovered). Failure to meet all three prongs is fatal to

movant. Although a meritorious defense may be found in the allegations contained within a sworn motion to set aside default which does not include a defensive pleading, such is not the case here, where the instant motion is neither verified nor includes a defensive pleading. Perry v. Univ. Cabs, Inc., 344 So.2d 914 (Fla. 3d DCA 1977) (the existence of a meritorious defense can be demonstrated by a sworn motion to set aside a default, as well as by a defensive pleading). In this case, Defendant did not seek a stipulation from the Plaintiff to set aside the default nor filed an affidavit setting forth the grounds for excusable neglect and an answer setting forth a meritorious defense and has engaged, together with her co-defendants, in dilatory tactics. The issue boils down to one very simple consideration whether the moving party has shown a meritorious defense to obtain relief from default the burden is on the moving party. Intentional disregard for the rules of procedure by a legally sophisticated pro se

Defendant does not require the Court to set aside the default on a defective and deficient motion. As there is no showing of meritorious defense, Plaintiff requests that the

Defendants motion be denied. In a hearing on a motion to set aside a default, the credibility of the person executing the declaration and weight to be given to their content is for the trial court. Defendants statement that Plaintiff knew she was seeking an extension of time is not credible. If Defendant knew anything, she knew that Plaintiff would oppose any extension of time or further delay in these proceedings, as she works for her co-defendant, who likewise sought a shorter extension of time and who was informed that Plaintiff would oppose any overly broad and unsupported extensions of time.

II. SANCTIONS SHOULD BE IMPOSED ON DEFENDANT If relief from default is based on evidence other than an affidavit, the Court may order the Defendant to pay costs, including attorneys fees, incurred by the Plaintiff. While discretionary, the imposition of same should be judged against the relative strength or weakness of a movants application and will be sustained when reasonably proportionate to the prejudice suffered by Plaintiff. The power to impose an award of fees is not to punish the defaulting party but rather is necessary to relieve the Plaintiff of the attending prejudice which has been the expenditure of costs and attorneys fees in the pursuit of the default as well as responding to Defendants defective motion to vacate and attending a hearing, not coordinated with the undersigned, on same. In the event that this Court grants the Defendants motion, Plaintiff requests Defendant Garcia be ordered to pay attorneys fees and costs, as sanctions for Plaintiff having to oppose the Defendants facially defective motion. In preparing the Opposition,

three and one-half hours were spent reading the motion and preparing the opposition, together with another one and one half (1 ) hour (portal to portal) at appearing at the time of hearing which was not coordinated with the undersigned prior to being set or the issues narrowed as required by this Court. Plaintiffs attorney charge $300.00 per hour.

Therefore, the sum of $1,350 in sanctions should be imposed. The reimbursement of Plaintiffs fees and costs as a condition of vacating the default would suffice to alleviate the prejudice to the Plaintiff. The only terms which are just to the Plaintiff and restore her to the status quo ante, is an award reimbursing her the fees and costs expended in seeking the default and in opposing the motion to vacate. Moreover, Defendants allegation in paragraphs 4 and 7 of her motion are patently false: her motion did not appear on the docket on the date that the Default was entered by the Clerk and the undersigned did not receive a copy of the Defendants motion until after the Default was obtained. Notably, Defendant could have, but chose not to, fax a copy of her motion and the Certificate of Service does not evidence the date it was presumably mailed. Further, there was no error in the Clerks entry of a Default, the Default was sought two days after a response was due and was entered when there was nothing of record to indicate that Defendant had filed a response. These false statements are emblematic of the bad faith that is the within motion and the tactics of this Defendant and her co-Defendants, her employer, Alberto N. Moris PA and Alberto N. Moris, Esquire. CONCLUSION Defendant Garcia has failed to make any showing of meritorious defense. Rather, the failure to file a responsive pleading appears to be deliberate. Accordingly, the motion should be denied and sanctions should be awarded.