Pastrana v. Level Up Fitness LLC

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-21985-BLOOM/Otazo-Reyes

CASANDRA PASTRANA, et al.,

Plaintiffs,

v.

LEVEL UP FITNESS, LLC, et al.,

Defendants. ____________________________/

ORDER SETTING ASIDE CLERK’S DEFAULT

THIS CAUSE is before the Court upon a sua sponte review of the record. On May 27, 2021, Plaintiffs Casandra Pastrana and Taylor Gartenmayer (“Plaintiffs”) initiated this action against Level Up Fitness LLC, Growth Fitness LLC (“Entity Defendants”), and Jeffrey Lessegue (collectively, “Defendants”). See generally ECF No. [1]. Service of the summonses and Complaint was executed on the Entity Defendants on June 11, 2021. ECF Nos. [10] & [11]. The Entity Defendants, however, failed to answer, or otherwise appear in this action. On July 15, 2021, Plaintiffs filed a Motion for Clerk’s Default against the Entity Defendants. ECF No. [15]. That same day, a Clerk’s Default was entered. ECF No. [16]. Thereafter, on August 24, 2021, Plaintiffs filed a Verified Motion for Extension of Time to Effectuate Service of Process on Defendant Jeffrey Lessegue (“Defendant Lessegue”), ECF No. [23] (“Motion”). Specifically, Plaintiffs sought an extension of time to effectuate service of process on Defendant Lessegue pursuant to Fla. Stat. §§ 48.161, 48.181. See generally id. In light of Plaintiffs’ difficulties to personally serve Defendant Lessege, as well as their representations that Defendant Lessegue is evading service, see ECF Nos. [23-1] & [23-2], the Court found good cause Case No. 21-cv-21985-BLOOM/Otazo-Reyes

to extend the service deadline and to permit Plaintiffs to file an Amended Complaint to assert facts that bring Defendant Lessegue within the purview of the substituted service statute. See ECF No. [24] (“Order”). In the Order, the Court also cautioned Plaintiffs that upon filing the Amended Complaint, the Clerk’s Default, ECF No. [16], will be set aside. Jd. at 5. Under Federal Rule of Civil Procedure 55(c), district courts have the discretion to sua sponte set aside an entry of default for good cause. See Anheuser Bush, Inc. v. Philpot, 317 F.3d 1264, 1267 (11th Cir. 2003) (holding that a district court may sua sponte set aside default for good cause (citing Fed. R. Civ. P. 55(c)); Berger v. Gil, No. 14-CV-61294, 2016 WL 11706261, at *18 (S.D. Fla. Sept. 13, 2016), report and recommendation adopted, No. 14-61294-CIV, 2017 WL 11566357 (S.D. Fla. Mar. 29, 2017) (“[A] clerk’s default can be set aside sua sponte.”) (citations omitted). On August 30, 2021, Plaintiffs filed their First Amended Complaint, ECF No. [25], rendering the Clerk’s Default moot. As such, the Court finds good cause to vacate the Clerk’s Default. Accordingly, itis ORDERED AND ADJUDGED that the Clerk’s Default entered against Growth Fitness, LLC and Level Up Fitness, LLC, ECF No. [16], is VACATED. DONE AND ORDERED in Chambers at Miami, Florida, on September 10, 2021.

UNITED STATES DISTRICT JUDGE Copies to: Counsel of Record