United States District Court

for the

Southern District of Florida

Center Home LLC, Plaintiff,

v.

Lexington Insurance Company, 

Defendant.

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Civil Action No. 22-23066-Civ-Scola

Order

This matter is before the Court on Plaintiff Center Home LLC’s unopposed 

motion to vacate the Court’s order dismissing this matter without prejudice. (ECF 

No. 8.) After careful consideration of the briefing, the record, and the relevant 

legal authorities, the Court denies the Plaintiff’s motion. (ECF No. 8.)

The Court granted Defendant Lexington Insurance Company’s motion to 

dismiss because the Plaintiff failed to comply with multiple deadlines to respond 

to the Defendant’s motion. (Order of Dismissal, ECF No. 7, at 1.) The Plaintiff’s 

response to the motion was originally due on October 14, 2022. (Order to 

Respond, ECF No. 6, at 1.) The Plaintiff failed to timely respond, and on October 

19—five days after the deadline—the Court entered an order directing the Plaintiff 

to respond no later than October 24, 2022. (Id.) The Plaintiff yet again failed to 

respond to the motion, and the Court granted the motion due to the Plaintiff’s 

failure to respond on October 31, 2022—another seven days after the second, 

modified deadline. (Order of Dismissal at 1.) In other words, the Plaintiff ignored 

the Court’s clear order, and seventeen days after the original deadline to respond, 

the Court granted the motion to dismiss. (Id.) 

Now, another eleven days after the Court’s order dismissing this matter, the 

Plaintiff requests that the Court vacate its order due to “a miscommunication and 

mistake among the parties” regarding the Plaintiff’s intent to move to amend the 

Complaint in response to the motion to dismiss. (Mot. at 1.) The Plaintiff does not 

provide any details of or explanation regarding the stated “miscommunication and 

mistake.” (Id. at 1-3.) 

“Federal Rule of Civil Procedure 60(b) allows the Court to vacate a previous 

order for, among other reasons, ‘excusable neglect.’” Zabala v. Integon Nat'l Ins. 

Co., No. 20-20751-CIV, 2020 WL 2129584, at *1 (S.D. Fla. May 5, 2020) (Scola, 

J.) (citing Fed. R. Civ. P. 60(b)(1)). “Excusable neglect,” however, does not relieve a 

lawyer of the duty “prosecute his or her clients’ cases.” Id. Multiple failures to 

respond, especially in the face of court notices of deadlines, does not constitute 

excusable neglect. Id. (“This case involves ‘not a one-time failure to calendar a 

deadline’ . . . but rather a clear record of repeated willful delay in the face of at 

Case 1:22-cv-23066-RNS Document 9 Entered on FLSD Docket 11/15/2022 Page 1 of 2
multiple notices, one of which contained an express warning of dismissal from 

this Court.”).

Here, the Plaintiff asks the Court to vacate the order of dismissal after the 

Plaintiff has delayed for twenty-eight days, in the face of a court order stating that 

the Court would grant the motion by default if the Plaintiff failed to timely 

respond. (Order of Dismissal at 1.) This failure to respond does not constitute 

“excusable neglect”—rather, it is the same sort of neglect this Court has 

previously found to be sufficient to dismiss cases and deny motions to vacate. 

Zabala, 2020 WL 2129584, at *1. The Plaintiff’s repeated delays, failure to abide 

by the Court’s clear order, and failure to provide anything more than a bare 

recital of the words “miscommunication and mistake” all support the Court’s 

decision to deny the motion to vacate. Id. at *1-2. 

Finally, the Court observed that in granting the motion to dismiss due to 

the Plaintiff’s multiple failures to respond, the Court dismissed this matter 

without prejudice and with leave to file a new action. (Order of Dismissal at 1.) 

The option to file a new civil action is therefore still available to the Plaintiff. 

For the reasons stated above, the Court denies the Plaintiff’s motion to 

vacate (ECF No. 8.) This case is to remain closed. 

Done and ordered in Miami, Florida, on November 14, 2022.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:22-cv-23066-RNS Document 9 Entered on FLSD Docket 11/15/2022 Page 2 of 2