UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 22-81731-CV-MIDDLEBROOKS

DEVIN FILIPPELLI as

Personal Representative of the

ESTATE OF KRYSTAL TALAVERA,

on behalf of the Estate and her Survivors,

Plaintiff,

v.

GROW, LLC (d/b/a KD INCORPORATED

and THE KRATOM DISTRO); and SEAN

MICHAEL HARDER, individually, 

Defendants.

______________________________________/

ORDER 

THIS CAUSE comes before the Court upon Plaintiff’s “Combined Expedited Motion and 

Memorandum for Relief from Order and, in the Alternative, Motion for Entry of Default,” filed on 

March 22, 2023. (DE 40). Defendants oppose the Motion. For the following reasons, the Motion 

is denied and the Clerk of Court is directed to enter default against Defendants. 

On March 15, 2023, Defendants filed a Notice of Withdrawal of Answer and Affirmative 

Defenses and Consent to Default Judgment. (DE 36). On March 17, 2023, I entered an order 

accepting Defendants’ withdrawal and setting a deadline for Plaintiff to move for Clerk’s Entry of 

Default on or by March 22, 2023, and then file a Motion for Final Default Judgment fourteen days 

upon Clerk’s Entry of Default. (DE 39). Plaintiff now moves for expedited relief from the March 

17 Order under Fed. R. Civ. P. 60(b)(1) and (6). 

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Plaintiff contends that Defendants’ notice of withdrawal is a “stratagem designed to evade 

liability and leave Plaintiff without recourse for relief.” (DE 40 at 2). In support, Plaintiff argues 

that “Defendants know that Plaintiff seeks information identifying additional parties within the 

chain of distribution [of Kratom] and seeks such information before the applicable statute of 

limitations . . . . ” (Id.). Moreover, Plaintiff argues that Defendants’ notice of withdrawal was 

defective because it should have been a motion a under Fed. R. Civ. P. 15. As such, Plaintiff 

contends that he is owed a “fair opportunity to be heard.” (Id. at 8). 

Plaintiff does not cite any relevant support to merit the relief sought. As to Rule 15, it is 

not at all clear that a rule to amend is relevant in a scenario in which the parties entirely withdraw

their answer. Plaintiff cites no case to indicate otherwise. As for due process, Plaintiff cites four

Florida state court cases with no relevance to the facts at hand. (Id.). Those cases involve matters 

such as forfeiture, pronouncement of criminal sentences, and evidentiary hearings to determine 

liability. (Id.). Here, Plaintiff will not be deprived of anything—he has all but won this lawsuit. 

By withdrawing their answers and defenses, Defendants have admitted the allegations in Plaintiff’s 

complaint. The Court appreciates that Plaintiff’s aim is to obtain discovery that would lead him 

to uncover additional distributors of Kratom. However, Plaintiff is essentially seeking a Court 

order that forces Defendants to litigate this case. I do not see how the Court has that authority and 

Plaintiff’s Motion is not otherwise persuasive.

According, it is hereby ORDERED AND ADJUDGED that: 

(1) Plaintiff’s Combined Expedited Motion (DE 40) is GRANTED IN PART AND DENIED 

IN PART.

a. Plaintiff’s Motion is DENIED as to relief sought from the Court’s March 17, 2023 

(DE 39) Order.

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b. Plaintiff’s Motion is GRANTED as to entry of default.

(2) Pursuant to Plaintiff’s Motion (DE 40 at 13), the Clerk of Court is DIRECTED to ENTER 

DEFAULT against Defendants GROW LLC and SEAN MICHAEL HARDER.

(3) Plaintiff is advised that the same instructions given in this Court’s March 17, 2023 (DE 39) 

Order regarding final default judgment apply.

SIGNED in Chambers at West Palm Beach, Florida, this 24th day of March, 2023.

Donald M. Middlebrooks

United States District Judge

cc: Counsel of Record

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