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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

Case No. 1:20-cv-22050-FAM 

SISVEL INTERNATIONAL, S.A. 

and SISVEL S.p.A., 

Plaintiff, 

v. 

BLU PRODUCTS, INC., 

Defendant. 

 / 

UNOPPOSED MOTION TO VACATE CLERK'S DEFAULT 

Defendant, BLU PRODUCTS, INC. (“BLU Products”), by and through its undersigned 

counsel and pursuant to Federal Rule of Civil Procedure 55(c), respectfully moves for the entry of 

an order vacating the Clerk's Default entered against it on September 15, 2020 [D.E. 12] (the 

“Default”). In support thereof, BLU Products submits the Declaration of Bernard L. Egozi, Esq. 

(“Egozi Declaration”), attached hereto as Exhibit “A,” and further submits the following: 

LEGAL STANDARD 

Federal Rule of Civil Procedure 55(c) provides that “[t]he court may set aside an entry of 

default for good cause.” Fed. R. Civ. P. 55(c). Good cause “is not susceptible of precise definition, 

and no fixed, rigid standard can anticipate all of the situations that may occasion the failure of a 

party to answer a complaint timely.” In the Matter of Dierschke, 975 F.2d 181, 183 (5th Cir. 1992). 

In considering a motion to set aside the entry of a default, a trial court should consider good cause 

liberally, keeping in mind that “[d]efaults are not favored and their strict enforcement ‘has no place 

in the Federal Rules.’” Effjohn Intern’l Cruise Holdings, Inc., 346 F.3d 552, 563 (5th Cir. 2003) 

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(citing Amberg v. Fed. Deposit Ins. Corp., 934 F.2d 681, 686 (5th Cir. 1991)). Furthermore, “where 

there are no intervening equities any doubt should, as a general proposition, be resolved in favor 

of the movant to the end of securing a trial upon the merits.” Lacy v. Sitel Corp., 227 F.3d 290, 

292 (5th Cir. 2000) (citing Gen. Tel. Corp. v. Gen. Tel. Answering Serv., 277 F.2d 919, 921 (5th 

Cir. 1960)). Several factors may be considered to determine whether there is good cause to set 

aside a default including: (1) whether the failure to act was willful; (2) whether setting the default 

aside would prejudice the adversary; and (3) whether a meritorious defense has been presented. 

Lacy, 227 F.3d at 292. A court may also consider whether the defendant acted expeditiously to 

correct its default. See Matter of Dierschke, 975 F.2d 181, 184 (5th Cir. 1992). 

ARGUMENT 

 There is good cause for vacating the clerk’s default entered against BLU Products because 

(1) its failure to act was not willful; (2) it has a meritorious defense; (3) setting aside the default 

does not prejudice the Plaintiff; and (4) it acted expeditiously after it discovered the default. 

 First, as explained in the Egozi Declaration, BLU Products’s failure to timely respond to 

the Complaint for Patent Infringement (the "Complaint") filed by Plaintiff Sisvel was due to an 

inadvertent office calendaring error and was not an intentional or willful act. See Egozi Declaration 

at ¶¶ 6-7, 13. Such a clerical error has been held to not rise to the level of willfulness. See Gamez 

v. Hosp. Klean of Texas, Inc., No. SA-12-CV-517-XR, 2013 WL 1089040, at *2 (W.D. Tex. Mar. 

14, 2013); see also Lacy, 227 F.3d at 293 (nothing in the record to indicate failure to respond was 

willful). Accordingly, this factor weighs in favor of vacating the default. 

Second, in determining whether a meritorious defense exists, “‘[t]he underlying concern is 

. . . whether there is some possibility that the outcome of the suit after a full trial will be contrary 

to the result achieved by the default.’” In re OCA, Inc., 551 F.3d 359, 373 (5th Cir. 2008) (quoting 

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Jenkens & Gilchrist v. Groia & Co., 542 F.3d 114, 122 (5th Cir. 2008). Here, BLU Products has 

a meritorious defense against the Complaint in the form of its proposed Answer and Affirmative 

Defenses attached hereto as Exhibit “B” and incorporated herein as though fully set forth. BLU 

Products filed this Answer and Affirmative Defenses on the same day as this Court's entry of an 

Order Directing Clerk of Enter Default [D.E. 10]. Accordingly, this factor cuts in favor of granting 

the motion to vacate. 

 Third, setting aside the default will not prejudice Sisvel. The Fifth Circuit has consistently 

held that a plaintiff does not suffer prejudice sufficient to warrant upholding a default when setting 

it aside does “no harm to plaintiff except to require it to prove its case.” Lacy, 227 F.3d at 293 

(quoting Gen. Tel. Corp. v. Gen. Tel. Answering Serv., 277 F.2d 919, 921 (5th Cir. 1960); United 

States v. One Parcel of Real Prop., 763 F.2d 181, 183 (5th Cir. 1985). Instead, a plaintiff must 

show that setting aside the default judgment will result in “loss of evidence, increased difficulties 

in discovery, or greater opportunities for fraud and collusion.” Lacy, 227 F.3d at 293 (citation and 

internal quotation marks omitted). Sisvel cannot credibly make such a showing here. In sum, 

setting aside the default under these circumstances would merely give BLU Products its day in 

court. See Gen. Tel. Corp., 277 F.2d at 921. This third factor thus weighs in favor of vacating the 

default. 

Finally, BLU Products acted expeditiously and immediately after it discovered the default. 

Upon receipt of the Order Directing Clerk to Enter Default [D.E. 10], counsel for BLU Products 

immediately (on the same day) contacted Sisvel's counsel to advise that the answer was not timely 

filed due to a calendaring error and that it would be filed imminently—and it was. See Egozi 

Declaration at ¶ 8; [D.E. 11]. Moments after the entry of the Default on September 15, 2020, 

counsel for BLU Products contacted Sisvel's counsel requesting Sisvel's position with respect to 

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vacatur of the default and filing of the Answer and Affirmative Defenses. See Egozi Declaration 

at ¶ 11. On September 17, 2020, Sisvel agreed not to oppose a motion to vacate the default entered 

against BLU Products. See Egozi Declaration at ¶ 12. Therefore, this factor cuts in favor of 

vacating the Default. See, e.g., Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 403 (5th Cir. 1981) 

(motion filed 12 days after the discovery of the judgment was within reasonable time as that term 

is used in Rule 60(b) for vacating judgments). 

Pursuant to Rule 7.1(a)(2), Local Rules of the United States District Court for the Southern 

District of Florida, a proposed order is attached for the Court’s convenience as Exhibit C, and a 

copy will be transmitted to judge’s chambers pursuant to Rule 3(I)(6) of the CM/ECF 

Administrative Procedures of the Southern District of Florida. 

CONCLUSION 

Based on the record before the Court, good cause exists for relief from the entry of default 

by the Clerk. Accordingly, BLU Products respectfully requests that the Court enter an order 

vacating the Default entered on September 15, 2020, deeming its Answer and Affirmative 

Defenses to the Complaint attached as Exhibit “B” filed as of the date of the Court’s order, and 

granting such other and further relief as the Court deems just and proper. 

Respectfully submitted, 

s/ Bernard L. Egozi 

Bernard L. Egozi (Florida Bar No. 152544) 

begozi@egozilaw.com 

Yanina Zilberman (Florida Bar No. 105665) 

yanina@egozilaw.com 

EGOZI & BENNETT, P.A. 

2999 NE 191 Street, Suite 407 

Aventura, Florida 33180 

Telephone: (305) 931-3000 

Facsimile: (305) 931-9343 

Counsel for Defendant 

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CERTIFICATE OF GOOD FAITH CONFERENCE 

 The undersigned certifies that as required by S.D. Fla. L.R. 7.1(a)(3), on September 14, 

2020, September 15, 2020 and September 17, 2020 counsel for BLU Products has conferred with 

counsel for Sisvel regarding the relief sought in this motion and said request for relief is 

unopposed. 

s/ Bernard L. Egozi 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing was served by 

electronic mail through the CM/ECF system on this 29th day of September, 2020, on all counsel 

of record on the service list below. 

 s/ Bernard L. Egozi 

 

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Service List

DEVLIN LAW FIRM LLC 

Timothy Devlin, Esq. 

Neil A. Benchell 

1526 Gilpin Avenue 

Wilmington, DE 19806 

Tel.: (302) 449-9010 

Fax: (302) 353-4251 

tdevlin@devlinlawfirm.com 

nbenchell@devlinlawfirm.com 

GRAY ROBINSON, P.A. 

Jorge Espinosa, Esq. 

Francesca Russo, Esq. 

Robert R. Jimenez, Esq. 

333 SE 2nd Avenue, Suite 300 

Miami, FL 33131 

Tel.: 305-416-6880 

Fax: 305-416-6887 

jespinosa@etlaw.com 

frusso@etlaw.com 

rjimenez@etlaw.com 

Counsel for Plaintiff 

 

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EXHIBIT "A" 

 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

Case No. 1:20-cv-22050-FAM 

SISVEL INTERNATIONAL, S.A. 

and SISVEL S.p.A., 

Plaintiff, 

v. 

BLU PRODUCTS, INC., 

Defendant. 

 / 

DECLARATION OF BERNARD L. EGOZI 

IN SUPPORT OF MOTION TO VACATE DEFAULT 

BERNARD L. EGOZI, pursuant to 28 U.S.C. § 1746, declares as follows: 

1. I am an attorney and a member of the bar of the United States District Court for the 

Southern District of Florida. 

2. I am employed by the law firm of Egozi & Bennett, P.A. (the “Firm”), and am 

outside counsel for Defendant, BLU PRODUCTS, INC. (“BLU Products”). 

3. On May 15, 2020, Plaintiff filed its Complaint in this action [D.E. 1]. 

4. On August 4, 2020, BLU timely filed an Unopposed Motion for Extension of Time 

to Respond to the Complaint [D.E. 7]. 

5. On August 5, 2020, the Court granted the request for extension and ordered BLU 

Products to file a response no later than September 3, 2020. [D.E. 9]. 

6. However, due to an inadvertent office error, the response date was not calendared 

in the Firm’s office calendar or the undersigned’s calendar. 

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7. As such, BLU Products did not timely file a responsive pleading to the Complaint. 

Had the undersigned or the Firm calendared the response date, BLU Products would have timely 

served a responsive pleading. 

8. On September 14, 2020, the undersigned learned that the Court entered an order 

directing the Clerk of Court to enter a default against BLU Products [D.E. 10]. Immediately upon 

receipt of the same, counsel for BLU Products (on the same day) contacted Sisvel's counsel to 

advise that the answer had not been timely filed due to a calendaring error and that it would be 

filed imminently. 

9. In good faith, BLU filed its Answer and Affirmative Defenses on September 14, 

2020 [D.E. 11]. 

10. On September 15, 2020, the undersigned learned that a Default was entered against 

BLU Products. [D.E. 12]. 

11. On September 15, 2020, the undersigned immediately contacted Plaintiff’s counsel 

requesting Plaintiff’s position with respect to BLU Products seeking to vacate the Default. 

12. In response, Plaintiff agreed not to oppose a motion to vacate the default against 

BLU Products. 

13. The failure of BLU Products to timely respond to the Complaint was an accident 

and was not willful or intentional. 

Under penalty of perjury, I, BERNARD L. EGOZI, declare that I have read the foregoing 

and that the facts stated herein are true based on my personal knowledge. 

Executed on September 24, 2020. 

 

 

BERNARD L. EGOZI 

 

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EXHIBIT "B" 

 

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EXHIBIT "C" 

 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

Case No. 1:20-cv-22050-FAM 

SISVEL INTERNATIONAL, S.A. 

and SISVEL S.p.A., 

Plaintiff, 

v. 

BLU PRODUCTS, INC., 

Defendant. 

 / 

ORDER ON UNOPPOSED MOTION TO VACATE CLERK'S DEFAULT 

THIS CAUSE is before the Court on the Unopposed Motion to Vacate Clerk's Default 

("Motion"), filed by Defendant BLU PRODUCTS, INC. ("BLU Products") [D.E. 13]. It is: 

ORDERED AND ADJUDGED that the Motion is GRANTED. The Clerk's Default 

entered against BLU Products on September 15 [D.E. 12] is hereby vacated. The Answer and 

Affirmative Defenses attached as Exhibit "B" to the Motion is deemed filed as of the date of this 

Order. 

 DONE AND ORDERED in Miami, Florida this _____ day of September, 2020. 

 

Federico A. Moreno 

 United States District Court Judge 

Copies to: 

Counsel of Record 

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