(a) By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.
(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, that party shall be served with notice of the application for default.
(c) Right to Plead. A party may plead or otherwise defend at any time before default is entered. If a party in default files any paper after the default is entered, the clerk shall notify the party of the entry of the default. The clerk shall make an entry on the progress docket showing the notification.
(d) Setting aside Default. 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).
(e) Final Judgment. Final judgments after default may be entered by the court at any time, but no judgment may be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other representative who has appeared in it or unless the court has made an order under rule 1.210(b) providing that no representative is necessary for the infant or incompetent. If it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter to enable the court to enter judgment or to effectuate it, the court may receive affidavits, make references, or conduct hearings as it deems necessary and shall accord a right of trial by jury to the parties when required by the Constitution or any statute.
A motion for clerk’s default should be set aside where plaintiff’s counsel, as a result of related litigation, had reason to know that defendant wished to respond to lawsuit As such, defendant was not required to show meritorious defense or excusable neglect.
In this case, defendant moved to vacate a default on the basis that plaintiff improperly used substitute service to serve the complaint. The trial court denied the motion. The appellate court affirmed, holding that defendant’s continued inaccessibility at his residence obviated the need for defendant to be served personally.
Entry of default constitutes an admission of only the well-pleaded factual allegations in the complaint and a complaint that does not state a cause of action cannot form the basis of a final judgment. As such, the Fourth DCA upheld trial court’s decision granting a defendant’s Motion to Dismiss for failure to state a cause of action where the defendant already had default entered against it in the case. Citing Days Inns Acquisition Corp. v. Hutchinson, 707 So.2d 747 (Fla. 4th DCA 1997) and GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975).