Legal Memorandum: Delay in Filing a Motion to Set Aside a Judgment

Issue: Under Florida law, when will a court decide that the delay in bringing a request to set aside a final judgment after default has been brought too late?

A trial court has wide discretion in deciding a motion to set aside a final judgment after default.  Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329, 1330 (Fla. 4th DCA 1978).  Although courts prefer that cases be decided on the merits, id., the judgment must stand in two situations: (1) “failure of the attorney to act with no good reason”; and (2) “failure to immediately react upon learning of the default.”  Id. (citing Sun Fin. Corp. v. Friend, 139 So. 2d 484 (Fla. 4th DCA 1962), In re Aston, 245 So. 2d 674 (Fla. 4th DCA 1971)).   Significantly, case law establishes that waiting six or seven weeks to file the motion after learning of the judgment is, as a matter of law, simply too long.  Lazcar Int’l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007) (reversing trial court order granting relief to defaulting party and citing cases which hold that one month or five weeks was too long to delay in filing the motion).

Further, to set aside a judgment of dismissal under Rule 1.540, the movant must make the motion within a “reasonable time,” Fla. R. Civ. P 1.540(b), and demonstrate “(1) excusable neglect in failing to respond; (2) meritorious defense; and (3) that the party acted with due diligence in seeking relief.” Schneider v. Schneider, 683 So. 2d 187, 188 (Fla. 4th DCA 1996). 

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