IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

BRANDON R. SMITH,

Plaintiff,

v. CASE NO. 1:20-cv-168-AW-GRJ

CAMPUS LODGE GAINESVILLE,

et al.,

Defendants.

______________________________/

ORDER

Pending before the Court are: (1) Defendant Campus Lodge 

Gainesville’s Motion to Set Aside Entry of Default, ECF No. 10; (2) 

Plaintiff’s Motion for Leave to File First Amended Complaint, ECF No. 13; 

(3) Defendants’ Motion for Summary Judgment, ECF No. 11; and (4) 

Defendants’ “Answer,” ECF No. 12. These filings are ripe for 

consideration, and the Court will address each in turn.

I. BACKGROUND

Plaintiff, proceeding pro se and in forma pauperis, initiated this case 

on July 31, 2020. ECF No. 1. Plaintiff alleged in his initial Complaint that 

Defendants Campus Lodge Gainesville and Coastal Ridge Real Estate 

engaged in racial discrimination prohibited under the Fair Housing Act, 42 

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U.S.C. § 3604(b), because his rent during the lease term beginning on 

August 1, 2020, was more than that for non-Black tenants with the same 

accommodations. Id. at 9–10. As to relief, Plaintiff sought compensatory 

and punitive damages. Id. at 10–11.

On August 6, 2020, the Court directed the United States Marshals 

Service to execute service of Plaintiff’s Complaint on Defendants pursuant 

to Federal Rule of Civil Procedure 4(c)(3). ECF No. 4. Defendant Coastal 

Ridge Real Estate received and executed a waiver of service and 

summons on September 4, 2020, acknowledging that it must respond to 

Plaintiff’s Complaint within 60 days from the date the notice was sent. ECF 

No. 6. Meanwhile, on September 16, 2020, the United States Marshals 

served Defendant Campus Lodge Gainesville with Plaintiff’s Complaint and 

a summons (directing a response within 21 days of service). ECF No. 7.

When Defendant Campus Lodge Gainesville failed to timely respond 

to Plaintiff’s Complaint, Plaintiff filed a motion for entry of a Clerk’s default

under Federal Rule of Civil Procedure 55(a). ECF No. 8. The Clerk 

entered the default the next day. ECF No. 9.

On November 1, 2020, Defendant Campus Lodge Gainesville filed 

the motion to set aside the Clerk’s default, ECF No. 10, and, with 

Defendant Campus Costal Ridge Real Estate, a motion for summary 

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judgment, ECF No. 11, and an “Answer,” ECF No. 12. Finally, on 

November 9, 2020, Plaintiff filed a motion for leave to file a First Amended 

Complaint, which he attaches as an exhibit to his motion. ECF No. 13. In 

short, Plaintiff’s First Amended Complaint adds a claim for “retaliation” 

against Defendant Campus Lodge Gainesville and drops Defendant 

Coastal Ridge Real Estate as a party. Id. at 13; see also id. at 3, 12–13.

II. MOTION TO SET ASIDE CLERK’S DEFAULT

Defendant Campus Lodge Gainesville asks the Court to set aside the 

Clerk’s default against it. ECF No. 10. Defendant explains that its counsel 

with Defendant Coastal Ridge Real Estate intended but failed to execute a

waiver of service for both parties—instead acting only on behalf of 

Defendant Coastal Ridge Real Estate—and proceeded in this litigation 

under this mistake. Id. at 1–2. Therefore, Defendant Campus Lodge 

Gainesville argues, its failure to respond to Plaintiff’s Complaint within 21 

days of service of the summons should be excused for “good cause,” for 

“mistake inadvertence, surprise, or excusable neglect,” or for “any other 

reason that justifies relief.” Id. at 2 (citing Fed. R. Civ. P. 55(c), 60(b)(1), 

60(b)(6)).

This Court “may set aside an entry of default for good cause[.]” Fed. 

R. Civ. P. 55(c). The “good cause” standard governs where—as here—the 

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Court has not entered a final default judgment, which would be subject to 

“the more stringent provisions of [Rule 60(b)].” Jones v. Harrell, 858 F.2d 

667, 669 (11th Cir. 1988). In the Eleventh Circuit, “good cause” is a 

“context-dependent determination to be made by a district court, and a 

court’s assessment will depend on the particular facts.” Farquharson v. 

Citibank, N.A., 664 F. App’x 793, 797 (11th Cir. 2016). There is, however, 

“a strong preference for deciding cases on the merits—not based on a 

single missed deadline—whenever reasonably possible.” Perez v. Wells 

Fargo N.A., 774 F.3d 1329, 1332 (11th Cir. 2014).

Defendant’s motion to set aside the Clerk’s default is due to be

granted for three reasons. First, the Court will treat the motion as 

unopposed insofar as Plaintiff has failed to file a response in opposition. 

See N.D. Fla. Loc. R. 7.1(H) (“The Court may grant a motion by default if 

an opposing party does not file a memorandum as required by this rule.”). 

Second, the Court surmises from its review of the proposed First Amended 

Complaint, discussed below, that Plaintiff wishes to continue litigating his 

discrimination claim in the initial Complaint, as well as a new proposed 

retaliation claim, against Defendant Campus Lodge Gainesville. Third, and 

finally, Defendant Campus Lodge Gainesville has demonstrated good 

cause for setting aside the Clerk’s default, namely that its failure to respond 

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within 21 days of service was due to a reasonable technical mistake and 

not clear disregard for legal process.

Therefore, Defendant Campus Lodge Gainesville’s motion to set 

aside the Clerk’s default is due to be GRANTED.

III. PLAINTIFF’S MOTION FOR LEAVE TO

FILE FIRST AMENDED COMPLAINT

Plaintiff asks the Court for leave to file his First Amended Complaint, 

which adds a claim for retaliation and drops Defendant Coastal Ridge Real 

Estate as a party. ECF No. 13. The motion is unopposed insofar as 

Defendants have failed to file any response in opposition. N.D. Fla. Loc. R. 

7.1(H).

Typically, federal courts should freely give leave to amend a pleading 

“when justice so requires.” Fed. R. Civ. P. 15(a)(2).1 At this juncture, 

Plaintiff does not need leave of court to file his First Amended Complaint. 

A party has the right to amend his or her pleading “once as a matter of 

course” within “21 days after service of a responsive pleading or ... service 

of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. 

1 The Supreme Court has instructed “[i]n the absence of any apparent or declared 

reason—such as undue delay, bad faith or dilatory motive on the part of the movant, 

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice 

to the opposing party by virtue of allowance of the amendment, futility of amendment, 

etc.—the leave sought should, as the rules require, be freely given.” Foman v. Davis, 

371 U.S. 178, 182 (1962). 

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P. 15(a)(1). Because this is Plaintiff’s first amendment and he filed the 

instant motion within one week of Defendants’ response to the initial 

Complaint, Plaintiff is entitled to file the First Amended Complaint as a 

matter of course.

Therefore, Plaintiff’s motion for leave to file the First Amended 

Complaint is due to be GRANTED.

IV. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

In response to Plaintiff’s initial Complaint, Defendants filed a motion 

for summary judgment pursuant to Federal Rule of Civil Procedure 56, 

replete with an appendix that includes supporting affidavits and exhibits. 

ECF No. 11. Plaintiff filed a response in opposition, arguing that the motion 

for summary judgment is premature. ECF No. 14.

Defendants’ motion for summary judgment is due to be terminated as 

moot because the initial Complaint is no longer the operative pleading (and 

Plaintiff has dropped any claim against Defendant Coastal Ridge Real 

Estate). S. Pilot Ins. Co. v. CECS, Inc., 15 F. Supp. 3d 1284, 1287 n.1 

(N.D. Ga. 2013). It bears mentioning, however, that this motion is 

premature because Plaintiff has not had the opportunity to pursue

discovery concerning the merits of his claims. See Vining v. Runyon, 99 

F.3d 1056, 1058 (11th Cir. 1996) (“A premature decision on summary 

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judgment impermissibly deprives the plaintiffs of their right to utilize the 

discovery process to discover the facts necessary to justify their opposition 

to the motion.”); see also Square Ring Inc. v. Troyanovsky, No. 3:16-cv641-MCR-GRJ, 2018 WL 7350674, at *1 n.2 (N.D. Fla. Feb. 12, 2018); 

Forum Architects LLC v. Candela, No. 1:07-cv-190-SPM-AK, 2008 WL 

2685676, at *7 (N.D. Fla. June 27, 2008).

Therefore, Defendants’ motion for summary judgment is due to be 

TERMINATED AS MOOT.

V. DEFENDANTS’ “ANSWER”

Finally, Defendants filed on the docket an “Answer” that is actually a 

second copy of its motion for summary judgment. ECF No. 12. The Court 

cannot determine whether Defendants intended to file a separate Answer 

to Plaintiff’s Complaint or whether the duplicative filing itself was in error. 

In any event, the Court will sua sponte STRIKE the “Answer” from the 

docket because it is redundant of Defendants’ motion for summary 

judgment. Fed. R. Civ. P. 12(f)(1); Kirven v. Curry Cty. Detention Ctr., 407 

F. Supp. 3d 1184, 1185 (D.N.M. 2019).

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VI. CONCLUSION

Accordingly, it is ORDERED:

1. Defendant Campus Lodge Gainesville’s Motion to Set Aside 

Entry of Default, ECF No. 10, is GRANTED. The Clerk is 

directed to VACATE the Clerk’s default against Defendant 

Campus Lodge Gainesville, ECF No. 9.

2. Plaintiff’s Motion for Leave to File First Amended Complaint, 

ECF No. 13, is GRANTED. The Clerk is directed to docket ECF 

No. 13 at 2–14 as Plaintiff’s First Amended Complaint and 

terminate Defendant Coastal Ridge Real Estate as a party. 

Defendant Campus Lodge must file a response to the First 

Amended Complaint on or before December 15, 2020.

3. Defendants’ Motion for Summary Judgment, ECF No. 11, is 

TERMINATED AS MOOT.

4. The Clerk is directed to STRIKE Defendants’ “Answer,” ECF No. 

12, from the docket as redundant of Defendants’ Motion for 

Summary Judgment, ECF No. 11.

 DONE AND ORDERED this 1st day of December 2020.

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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