The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT PIERCE DIVISION
Case Number: 20-14388-CIV-MARTINEZ/MAYNARD
REGAL NAILS, SALON & SPA, LLC,
Plaintiff,
v.
HOANG MINH T HA,
Defendant.
_____________________________________/
ORDER ADOPTING MAGISTRATE JUDGE MAYNARD’S REPORT AND
RECOMMENDATION
THIS MATTER was referred to the Honorable Shaniek M. Maynard, United States
Magistrate Judge, for a ruling on Plaintiff’s Motion for Default Judgment, (ECF No. 15). Judge
Maynard held an evidentiary hearing on July 8, 2021 and August 24, 2021 on the matter.1
Thereafter, Judge Maynard issued a Report and Recommendation (“R&R”) recommending that:
(1) Plaintiff’s Motion for Default Judgment, (ECF No. 15), be denied; (2) Defendant’s ore tenus
Motion to Set Aside the Clerk’s Default be granted;2 and (3) Defendant be ordered to file a
responsive pleading to the Complaint, with a cautionary note that his failure to do so may result in
the Court revisiting the issue of entering a default judgment in Plaintiff’s favor. (ECF No. 33).
Defendant has filed timely objections to the R&R. (ECF No. 35). The Court has conducted a de
novo review of the record and finds that Judge Maynard’s R&R is AFFIRMED and ADOPTED
1 The evidentiary hearing was initially scheduled to take place on July 8, 2021. Defendant appeared at this
hearing, but given the language barrier, a second evidentiary hearing was scheduled for August 24, 2021
with a Vietnamese interpreter. (See ECF Nos. 21, 24).
2 Judge Maynard construed Defendant’s oral request at the evidentiary hearings to “defend himself” as an
ore tenus Motion to Set Aside the Clerk’s Default. The Court agrees with this determination.
in its entirety.
Default judgments are disfavored in this Circuit and there is a strong public policy in favor
of determining cases on their merits. Florida Physicians Ins. Co., Inc. v. Ehlers, 8 F.3d 780, 783
(11th Cir. 1993). Indeed, the Eleventh Circuit has consistently noted that “[e]ntry of judgment by
default is a drastic remedy which should be used only in extreme situations, as the court has
available to it a wide range of lesser sanctions.” Mitchell v. Brown & Williamson Tobacco Corp.,
294 F.3d 1309, 1316–17 (11th Cir. 2002) (quoting Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir.
1985)).
Defendant, who is appearing pro se, is a native Vietnamese speaker, who understands
English “50/50.” (R&R, at 5, ECF No. 33). While he acknowledges that he received the summons
and complaint from the process server, he explained at the evidentiary hearing held by Judge
Maynard that, “(1) the paperwork that arrived was in English and Defendant does not understand
English ‘very much’; and (2) Defendant received the paperwork ‘very close’ to the date he was
supposed to respond to court.” (R&R, at 4). Plaintiff objects to Judge Maynard’s R&R stating
that pro se parties are not excused from adhering to procedural rules. (Objections, at 9, ECF No.
35). This is true. However, the Court has a duty to afford greater leeway to a pro se party and it
does so here. Given Defendant’s request to defend himself in this action, the Court adheres to the
strong public policy in favor of determining cases on their merits and denies the Motion for Default
Judgment for the reasons stated in Judge Maynard’s R&R.
Moreover, Judge Maynard’s well-reasoned R&R properly outlines other factors weighing
in favor of setting aside the clerk’s default. In particular, Judge Maynard points to Defendant’s
language barrier; the fact that the motions for entry of default and default judgment were not served
on Defendant’s correct address; and the fact that Plaintiff would not suffer any prejudice if the
default is set aside. Plaintiff argues that a defendant who is in default for failing to timely appear
is not entitled to service of the Motion for Default and Motion for Default Judgment. (Objections,
at 2). However, “nothing in the text of Rule 55 excuses the service requirement for requests for
entry of default (as distinguished from motions for default judgment), and Rule 5(a) on its face
requires such service.” Capitol Records v. Rita Carmichael, 508 F. Supp. 2d 1079, 1083 (S.D.
Ala. 2007). Courts have generally required some notice to be given to a defendant between the
time of service of process and entry of default judgment. See id. (citing International Brands USA,
Inc. v. Old St. Andrews Ltd., 349 F. Supp. 2d 256, 261 (D. Conn. 2004); F.T.C. v. 1263523 Ontario,
Inc., 205 F. Supp. 2d 205, 208 (S.D.N.Y. 2002); New York State Teamsters Conference Pension
and Retirement Fund v. Fratto Curbing Co., 875 F. Supp. 129, 131 (N.D.N.Y.1995)). Here, too,
the Court required that Plaintiff give notice to Defendant of the default judgment procedure, and
whether through oversight or inadvertence, Plaintiff did not send the documents to Defendant’s
correct address. Neither did Plaintiff serve its motion for entry of a clerk’s default to Defendant’s
correct address. (See ECF No. 7, at 4 (listing Defendant’s service address as 460 Toruga Way W.,
instead of 461 Toruga Way W.)). Therefore, the Court finds that the Clerk’s default is vacated,
and this matter shall proceed on the merits.
For the foregoing reasons, it is
ADJUDGED that United States Magistrate Judge Maynard’s Report and
Recommendation, (ECF No. 35), is AFFIRMED and ADOPTED in its entirety.
Accordingly, it is further ADJUDGED that:
1. Plaintiff’s Motion for Default Judgment, (ECF No. 15), is DENIED.
2. Defendant’s ore tenus Motion to Set Aside the Clerk’s Default is GRANTED.
3. The Clerk’s entry of default, (ECF No. 8), is VACATED.
4. Defendant SHALL file an answer to the Complaint no later than October 25,
2021.
5, Defendant is warned that if he fails to respond to the Complaint, the Court will
reconsider its decision to enter default judgment in Plaintiff's favor. No extensions of this deadline
will be granted absent exigent circumstances.
DONE and ORDERED in Chambers at Miami, Florida this 24th day of September, 2021.
£
JOSEJE. MARTINEZ
UNJVED STATES DISTRICT JUBGE
Copies provided to:
Magistrate Judge Maynard
All counsel of record