Opinion
18-CV-10788 (JPC) (OTW)
12-02-2020
MSC MEDITERRANEAN SHIPPING CO. S.A., Plaintiff, v. AIRLIFT MARINE SERVICES PVT LTD., et al., Defendants.
Honorable John P. Cronan, United States District Judge
REPORT & RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE:
The action is before me for a report and recommendation on the motion by Plaintiff MSC Mediterranean Shipping Co. S.A. (“MSC”) to strike the answer of Defendant Airlift Marine Pvt. Ltd (“Airlift Marine”). (ECF 80). For the reasons stated below, I recommend that MSC's motion be GRANTED.
I. Background
A. Facts
Plaintiff MSC brought this action for indemnification of its costs in a New Jersey personal injury action (the “Personal Injury Action”). Brian Diver, the Personal Injury Action plaintiff, was injured while unloading marble slabs from an ocean shipping container (the “Container”) at the New Jersey premises of his employer, Elite Stone Importers. The Container was loaded in India and transported to New York under an MSC bill of lading to which Airlift USA and Airlift Marine were parties.
Mr. Diver sued MSC, Airlift (U.S.A.), Inc. (“Airlift USA”), Airlift Marine, and the receiver of the cargo in New Jersey state court. In March 2020, the state court parties settled the Personal Injury Action with MSC paying $755,000 and the cargo receiver paying $20,000. Herein, MSC seeks recovery of the $755,000 settlement plus attorneys' fees and costs incurred in the Personal Injury Action.
B. Procedural History
MSC filed this action against Airlift Marine and Airlift USA in November 2018. (ECF 1). Airlift Marine and Airlift USA were served on November 29, 2018. (ECF 9, 10). The Defendants failed to timely answer the complaint, and MSC moved for Clerk's Certificates of Default, which were issued on December 28, 2018. (ECF 13, 16, 17).
Subsequently, Steven Janel, Esq. entered an appearance for both Defendants and answered the complaint. (ECF 18, 21 (the “Answer”)). Airlift USA later retained additional counsel. (ECF 22-23).
On November 20, 2019, I held a settlement conference in this action. Airlift Marine did not appear. On December 31, 2019, MSC requested a conference because Airlift Marine was delinquent in responding to discovery requests. (ECF 53). On January 8, 2020, Mr. Janel moved to withdraw as Airlift Marine's counsel. (ECF 56). I scheduled a status conference in this action for February 27, 2020. (ECF 63). Minutes before the conference was to start, Mr. Janel, called and indicated that he would be unable to attend because he did not know of the conference despite the fact that the order was filed on ECF and other attorneys appeared. (ECF 68).
On March 9, 2020, I issued an order to show cause why Mr. Janel should not be sanctioned for failing to appear. (ECF 68). Mr. Janel responded on March 12, 2020. (ECF 69).
On March 13, 2020, I granted the withdrawal motion, finding there was no prejudice to Mr. Janel's withdrawal and ordered that “[b]ecause limited liability companies cannot proceed pro se, Airlift Marine shall engage new counsel and have them file a notice of appearance by April 10, 2020.” (ECF 70). I further warned Airlift Marine that “failure to do so may result in a default judgment.” (ECF 70). Airlift Marine never engaged new counsel.
On July 30, 2018, I ordered that MSC either move to strike Airlift Marine's Answer or dismiss Airlift Marine from the case by August 14, 2020. MSC timely moved to strike Airlift Marine's Answer.
The action was referred to me for General Pretrial Supervision and a report and recommendation on the instant motion. (ECF 54, 86).
II. Analysis
Rule 11(a) of the Federal Rules of Civil Procedure provides that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name-or by a party personally if the party is unrepresented.” Fed.R.Civ.P. 11(a). Further, 28 U.S.C. § 1654, which governs appearances in federal courts, “has been interpreted to allow for two types of representation: that by an attorney admitted to the practice of law by a governmental regulatory body, and that by a person representing himself. The statute does not allow for unlicensed laymen to represent anyone else other than themselves.” Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (internal quotation marks and citation omitted). Thus, a corporation may appear in federal courts only through licensed counsel. Rowland v. California Men's Colony, 506 U.S. 194, 202 (1993). Courts have repeatedly recognized that the “‘failure to obey a court order to obtain counsel to allow a case to proceed can constitute a failure to defend' and may warrant the striking of a defendant's answer.” Tr. of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Coop., Pension, & Welfare Funds v. KND Const. Corp., No. 13-CV-6116 (JS) (GRB), 2014 WL 6769292, at *1 (E.D.N.Y. Nov. 28, 2014) (quoting Walter S. Johnson Bldg. Co. v. Majewski, No. 09-CV-1083A, 2011 WL 5040672, at *2 (W.D.N.Y. Oct. 21, 2011)); see also Deep S. Assocs. LLC v. Harborbay Constr. Inc., 2018 WL 6204619 (DRG) (ARL), at *2 (Nov. 8, 2018), report and recommendation adopted 2018 WL 6198953 (E.D.N.Y. Nov. 28, 2018).
In light of Airlift Marine's inability to proceed pro se and its failure to comply with a Court order directing it to appear through counsel, I recommend that the Clerk of Court strike the Answer on behalf of Airlift Marine only and issue a Certificate of Default against Airlift Marine only.
III. Conclusion
For the reasons stated above, I recommend that the Clerk of Court strike the Answer on behalf of Airlift Marine only and issue a Certificate of Default against Airlift Marine only.
IV. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Hon. John P. Cronan. Any requests for an extension of time for filing objections must be directed to Judge Cronan.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Plaintiff is directed to serve a copy of this Report and Recommendation on Airlift Marine and file proof of service within 7 days of this Report and Recommendation.