Lherisson v. Whittington et al
| Brandon Lherisson |
| R.D. Whittington, Whittington Motor Sports Inc. and Whittington Motor Sports Inc. d/b/a Scottsdale Sports Car Group an Arizona corporation agent of Scottsdale Sports Car Group |
| 1:2023cv22462 |
| June 30, 2023 |
| US District Court for the Southern District of Florida |
| Lauren Fleischer Louis |
| K Michael Moore |
| Other Statutory Actions |
| 49 U.S.C. § 32701 Federal Odometer Act |
| Plaintiff |
Docket Report
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Filing 16
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant, Whittington Motor Sports, Inc.'s Motion to Set Aside Clerk's Default and Memorandum of Law. #14 . On August 9, 2023, Plaintiff requested that the Clerk of the Court enter a default against Defendant Whittington Motor Sports, Inc., d/b/a Scottsdale Sports Car Group, for failure to serve or file an answer or responsive pleading in this matter within the time required by law. #10 . The Clerk of Court entered default against Defendant on the same day. #11 . Now, Defendant Whittington Motor Sports, Inc. requests that the Court set aside the Clerk's Entry of Default against it. #14 . Pursuant to Rule 55(c) of the Federal Rules of Civil Procedure, a court has discretion to set aside an entry of default for "good cause." See Fed. R. Civ. P. 55(c). "Good cause" is "a liberal [standard]--but not so elastic as to be devoid of substance." See Compania Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (citation omitted). In evaluating good cause, courts consider whether the default was culpable or willful, the speed with which the defaulting party sought to correct the entry of default, and whether setting aside the default will prejudice the adversary. See SEC v. Johnson, 436 F. App'x 939, 945 (11th Cir. 2011). Here, the Court finds good cause to vacate the entry of default. Defendant avers that the default was not the result of willful disregard, because "Whittington Motor Sports acted promptly and gave this matter utmost importance when it learned of the deficiency in its failure to respond to the Complaint." #14 at 3. Moreover, Defendant asserts that vacating its default would not prejudice Plaintiff "given that two (2) calendar days have elapsed from the Clerk's entry of the Default and the filing of the instant Motion." Id. Finally, the Court agrees that setting aside the entry of default will not prejudice Plaintiff, particularly since there is a "strong policy of determining cases on their merits" in the Eleventh Circuit. In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295 (11th Cir. 2003). Accordingly, UPON CONSIDERATION of the Motion #14 , the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Clerk of Court is instructed to VACATE the Clerk's entry of default against Defendant Whittington Motor Sports, Inc., d/b/a Scottsdale Sports Car Group. Signed by Judge K. Michael Moore on 8/15/2023. (mh02)
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| Filing 15 Defendant's MOTION TO DISMISS #1 Complaint FOR FAILURE TO STATE A CLAIM by R.D. Whittington, Whittington Motor Sports Inc.. Responses due by 8/25/2023 (Santisteban, Carlos) |
| Filing 14 Defendant's MOTION to Set Aside Default by Whittington Motor Sports Inc.. (Santisteban, Carlos) |
| Filing 13 NOTICE of Attorney Appearance by Carlos Santisteban, Jr on behalf of R.D. Whittington, Whittington Motor Sports Inc.. Attorney Carlos Santisteban, Jr added to party R.D. Whittington(pty:dft), Attorney Carlos Santisteban, Jr added to party Whittington Motor Sports Inc.(pty:dft). (Santisteban, Carlos) |
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Filing 12
PAPERLESS NOTICE OF COURT PRACTICE UPON ENTRY OF DEFAULT. THIS CAUSE came before the Court upon the Clerk of Court's Entry of Default against Defendant Whittington Motor Sports Inc. d/b/a Scottsdale Sports Car Group. #11 . Plaintiff is instructed to file a Motion for Default Judgment pursuant to Fed. R. Civ. P. 55(b) within twenty (20) days of the date of this Notice, or the Court will be divested of jurisdiction to enforce any judgment against Defendant. Plaintiff's Motion should include what Counts from the Complaint that Plaintiff alleges against the defaulting Defendant, and affidavits detailing corresponding damages. "Damages may be awarded only if the record adequately reflects the basis for award via... 'a demonstration by detailed affidavits establishing the necessary facts.'" Adolph Coors Co. v. Movement against Racism & Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (quoting United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)). Plaintiff must also submit appropriate proposed orders so as to conform its submission to the Southern District of Florida Local Rules. Signed by Judge K. Michael Moore on 8/11/2023. (mh02)
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| Filing 11 VACATED. Clerk's Entry of Default as to Whittington Motor Sports Inc. d/b/a Scottsdale Sports Car Group - Motions Terminated: #10 Motion for Clerks Entry of Default Signed by DEPUTY CLERK on 8/10/2023. (ebz) Modified per DE 16 Order on 8/15/2023 (ebz). |
| Filing 10 MOTION for Clerk's Entry of Default as to Whittington Motor Sports Inc. by Brandon Lherisson. (Attachments: #1 Text of Proposed Order)(Villalon, Ramsey) |
| Filing 9 SUMMONS (Affidavit) Returned Executed on #1 Complaint with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Brandon Lherisson. Whittington Motor Sports Inc. served on 7/18/2023, response/answer due 8/8/2023. (Villalon, Ramsey) |
| Filing 8 Summons Issued as to R.D. Whittington, Whittington Motor Sports Inc.. (Attachments: #1 Summon(s))(ebz) |
| Filing 7 NOTICE of Filing Proposed Summons(es) by Brandon Lherisson re #1 Complaint filed by Brandon Lherisson (Attachments: #1 Summon(s) Whittington Personal Summons, #2 Summon(s) Whittington Corporate Summons) (Villalon, Ramsey) |
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Filing 6
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE LAUREN F. LOUIS. PURSUANT to 28 U.S.C. 636 and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida, the above-captioned Cause is referred to United States Magistrate Judge Lauren F. Louis to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. Any motion affecting deadlines set by the Court's Scheduling Order is excluded from this referral, unless specifically referred by separate Order. It is FURTHER ORDERED that the parties shall comply with Magistrate Judge Lauren F. Louis's discovery procedures. Signed by Judge K. Michael Moore on 7/5/2023. (rhr)
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Filing 5
PAPERLESS PRETRIAL ORDER. This order has been entered upon the filing of the complaint. Plaintiff's counsel is hereby ORDERED to forward to all defendants, upon receipt of a responsive pleading, a copy of this Order. It is further ORDERED that S.D. Fla. L.R. 16.1 shall apply to this case and the parties shall hold a scheduling conference no later than twenty (20) days after the filing of the first responsive pleading by the last responding defendant, or within sixty (60) days after the filing of the complaint, whichever occurs first. However, if all defendants have not been served by the expiration of this deadline, Plaintiff shall move for an enlargement of time to hold the scheduling conference, not to exceed 90 days from the filing of the Complaint. Within ten (10) days of the scheduling conference, counsel shall file a joint scheduling report. Failure of counsel to file a joint scheduling report within the deadlines set forth above may result in dismissal, default, and the imposition of other sanctions including attorney's fees and costs. The parties should note that the time period for filing a joint scheduling report is not tolled by the filing of any other pleading, such as an amended complaint or Rule 12 motion. The scheduling conference may be held via telephone. At the conference, the parties shall comply with the following agenda that the Court adopts from S.D. Fla. L.R. 16.1: (1) Documents (S.D. Fla. L.R. 16.1.B.1 and 2) - The parties shall determine the procedure for exchanging a copy of, or a description by category and location of, all documents and other evidence that is reasonably available and that a party expects to offer or may offer if the need arises. Fed. R. Civ. P. 26(a)(1)(B). (a) Documents include computations of the nature and extent of any category of damages claimed by the disclosing party unless the computations are privileged or otherwise protected from disclosure. Fed. R. Civ. P. 26(a)(1)(C). (b) Documents include insurance agreements which may be at issue with the satisfaction of the judgment. Fed. R. Civ. P. 26(a)(1)(D). (2) List of Witnesses - The parties shall exchange the name, address and telephone number of each individual known to have knowledge of the facts supporting the material allegations of the pleading filed by the party. Fed. R. Civ. P. 26(a)(1)(A). The parties have a continuing obligation to disclose this information. (3) Discussions and Deadlines (S.D. Fla. L.R. 16.1.B.2) - The parties shall discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case. Failure to comply with this Order or to exchange the information listed above may result in sanctions and/or the exclusion of documents or witnesses at the time of trial. S.D. Fla. L.R. 16.1.I. The parties are hereby on notice that this Court requires all filings to be formatted in 12 point Times New Roman font and double spaced, including any footnotes, with one inch margins on all sides. Failure to follow these formatting guidelines may result in the filing being stricken, any opposing filing being granted by default, and the imposition of other sanctions, including attorney's fees and costs. Multiple Plaintiffs or Defendants shall file joint motions with co-parties unless there are clear conflicts of position. If conflicts of position exist, parties shall explain the conflicts in their separate motions. Failure to comply with ANY of these procedures may result in the imposition of appropriate sanctions, including but not limited to, the striking of the motion or dismissal of this action. The parties shall seek extensions of time in a timely fashion. "A motion for extension of time is not self-executing.... Yet, by filing these motions on or near the last day, and then sitting idle pending the Court's disposition of the motion, parties essentially grant their own motion. The Court will not condone this." Compere v. Nusret Miami, LLC, 2020 WL 2844888, at *2 (S.D. Fla. May 7, 2020) (internal citations omitted). Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuit's Local Rules and Internal Operating Procedures, within three (3) days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court.Telephonic appearances are not permitted for any purpose. Upon reaching a settlement in this matter the parties are instructed to notify the Court by telephone and to file a Notice of Settlement within twenty-four (24) hours. Signed by Judge K. Michael Moore on 7/5/2023. (rhr)
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| Filing 4 NOTICE by Brandon Lherisson re 3 Clerk's Notice to Filer re: Electronic Case, #1 Complaint Filing Civil Cover Sheet (Attachments: #1 Exhibit Civil Cover Sheet) (Villalon, Ramsey) |
| Filing 3 Clerk's Notice to Filer re: Electronic Case. No Civil Cover Sheet. Filer is instructed to file a Notice (Other) with the Civil Cover Sheet attached within 24 hours of the notice. (pc) |
| Filing 2 Clerks Notice of Judge Assignment to Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Lauren F. Louis is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (pc) |
| Filing 1 COMPLAINT against All Defendants. Filing fees $ 402.00 receipt number AFLSDC-16735929, filed by Brandon Lherisson. (Attachments: #1 Exhibit Exhibit 1)(Villalon, Ramsey) |
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