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IN THE CIRCUIT COURT, [circNum] JUDICIAL CIRCUIT,

IN AND FOR [county] COUNTY, FLORIDA

[plfName]	)
Plaintiff,	)
)
vs.	)	Case No (LT):	[caseNo]
[defName]	)	Division:	[caseDiv]
)
Defendant,	)

PLAINTIFF’S MOTION TO SET ASIDE DEFAULT

Plaintiff, [plfName], on this [d] day of [MMM] [YYYY], hereby moves this Court - pursuant to Rule 1. 500 Fla. R. Civ. P. - to set aside the default that the Clerk entered (see Doc No [XX]; [dtFiled]).

Key Points:

Points	timely; appeared;

Grounds	erroneous default; clerical error; mistake;

Table of Contents:

Context	2nd Page
Motion	3rd Page
Certificates	6th Page
Exhibits	7th Page
Affidavits	9th Page

Background:	The Clerk of the Court entered default against Plaintiff

Problem:	The Clerk’s default was erroneous

Request:	Court sets aside the Clerk’s default

Rule 1.500(d) Fla. R. Civ. P. | Sham Pleadings (highlights added)

“The court may set aside a default, and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with rule 1.540(b).”

Rule 1.540(b) Fla. R. Civ. P. | Sham Pleadings (highlights added)

“(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing;

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) that the judgment, decree, or order is void; or

(5) that the judgment, decree, or order has been satisfied, released, or discharged, or a prior judgment, decree, or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment, decree, or order should have prospective application.”

Abbreviations

[M###]	-	Page ### of ‘That Motion’
4DCA	-	Fourth District Court of Appeals (FL)
AHCA	-	Agency for Healthcare Administration (FL)
OAG	-	Office of Attorney General (FL)
USFLMD	-	US District Court, Florida, Middle District

MOTION

Pertinent History

[hist001].

[hist002].

[hist003].

[hist004].

[hist005].

[hist006].

Analysis

[any001].

[any002]

[any003]

[any004]

[any005]

[any006]

Arguments in Favor of Setting Aside Default

According to Florida’s Supreme Court, the purpose of a default is to secure the ‘just & speedy determination’ of all causes (highlights added):

“The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage... without the difficulty that arises from a contest by the defendant.”

Coggin v. Barfield, 8 So.2d 9 (Fla. 1942)

Moreover, the appellate courts implore trial courts to adjudicate cases on their merit (ie, not on procedural defaults):

“It is axiomatic that Florida jurisprudence favors liberality in the area of setting aside defaults in order that parties may have their controversies decided on the merits”... A default will be set aside upon a showing that excusable neglect led to the default, a meritorious defense exists for the cause, and due diligence was used to set aside the default... Further, "where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.”

Latin v. Italian, 596 So.2d 1174 (4DCA 1992)

Additionally, the appellate courts have held that – when the clerk’s default is erroneous then – a showing of excusable neglect will not be necessary (highlights added):

“Because a default was entered erroneously by the clerk at a time when Beztak had, in fact, served papers in the cause, there was no requirement that Beztak establish excusable neglect, a meritorious defense, or due diligence.”

Beztak v. Kesling, 596 So. 2d 1297 (2DCA 1992)

Application to the Instant Case

[app001]

[app002]

[app003]

Nature of Relief Sought

As such, Plaintiff seeks to have the Clerk’s Default set aside.

CONCLUSION

WHEREFORE, Plaintiff respectfully asks this Court to Set Aside the Clerk’s Default {#[XX]} because it was [reasonToSetAside].

Dated this [D] day of [MMMM] [YYYY].

Respectfully submitted,

/s/ [plfName]

[plfName], Plaintiff

[plfAddy]

P: [plfPhn]

E: [plfEml]

W: TextBookDiscrimination.com

Get Booked Up on Justice!

CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (caption) and Courier New 12-point Font (contents); thus complying with the font requirements of Rule 9.210(a)(2) Fla. R. App. P.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this [D] day of [MMMM] [YYYY], I electronically filed the foregoing by using the Florida Courts E-filing Portal which will send a notice of filing to the attached service list.

/s/ [plfName]

Endnotes:

How-To Guide: (interactive)

TextBookDiscrimination.com/Guides/Motions/SetAside

SERVICE LIST

[defAtt], Esquire ([barNum]) E: [defEml] P: [defPhn] (defendant’s trial lawyers)

EXHIBIT A

AFFIDAVIT

IN THE CIRCUIT COURT, [circNum] JUDICIAL CIRCUIT,

IN AND FOR [county] COUNTY, FLORIDA

[plfName]	)
Plaintiff,	)
)
vs.	)	Case No (LT):	[caseNo]
[defName]	)	Division:	[caseDiv]
)
Defendant,	)

PLAINTIFF’S VERIFIED AFFIDAVIT IN SUPPORT OF ‘PLAINTIFF’S MOTION TO SET ASIDE CLERK DEFAULT

The affiant, [plfName], swears or affirms as follows:

Background

I am over the age of eighteen (18).

I am a civilian; a resident of [cou] County, Florida.

This affidavit is made in good faith.

Familiarity

I have read the Division Rules, the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Appellate Procedure, and much more.

The facts mentioned in this Affidavit are based on (a) verifiable public fact; and (b) my own personal observations/knowledge.

Pertinent Facts

[affFact001].

[affFact002].

[affFact003].

[affFact004].

[affFact005].

[affFact006].

Ultimate Facts

[ultFact001].

[ultFact002].

[ultFact003].

Verification Under Oath Pursuant to §92.525 FS and 28 USC §1746

I declare under penalty of perjury that the foregoing is true and correct. Executed on this [D]th day of [MMMM] [YYYY].

UNITED STATES OF AMERICA Florida [cou] County	[M]/[D]/[YYYY]
[plfNm], Affiant

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