Opinion
No. 03 Civ. 8659 (RLE).
March 18, 2005
MEMORANDUM OPINION ORDER
I. BACKGROUND
Plaintiff Donna Mussenden Van Der Zee ("Van Der Zee") filed this copyright infringement action against defendants Delano Greenidge ("Greenidge") and Delano Greenidge Editions, LLC ("Greenidge LLC") on November 3, 2003. The parties filed their consent to proceed before a United States Magistrate Judge for all purposes on February 25, 2004.
This Court held a discovery conference on March 24, 2004. During that conference, the Court ordered that Greenidge may appear pro se in his individual capacity, but that Greenidge LLC must obtain counsel in order to proceed in the case. On May 5, 2004, Van Der Zee filed a motion for default judgment against Greenidge LLC on the grounds that it had not obtained counsel as advised by the Court and had not filed an answer.
The parties appeared for another conference on May 18, 2004. Greenidge LLC again appeared pro se. However, Greenidge informed the Court that he had retained attorney Tarsha C. Smith ("Smith") to represent Greenidge LLC, that he had notified her of the conference, and that he did not know why she had failed to appear. The Court ordered that any counsel retained for Greenidge LLC must file a notice of appearance and file an answer within ten days. Shortly after the conference, Smith notified chambers, and stated that she had been unable to attend the conference because of traffic delays. In an order dated May 21, 2004, the Court directed that any counsel retained by defendant corporation enter an appearance and file an answer by May 28, 2004. The Court also warned that "failure to file a timely answer will result in the entry of a default judgment against defendant corporation." Subsequently, the Court granted defendant corporation's request to extend the deadline to June 7, 2004.
On June 7, 2004, Smith submitted a notice of motion to dismiss the action against Greenidge and Greenidge LLC, in lieu of an answer, on the grounds of lack of subject matter jurisdiction over the cause of action and personal jurisdiction over defendants, plaintiff's failure to state a claim, and insufficiency of process. The motion was accompanied by an affirmation, and an affidavit by Greenidge. However, Smith failed to file the motion and accompanying documents with the clerk's office. She also failed to enter a notice of appearance. Smith asked for an additional two weeks to cure these deficiencies. The Court granted her until July 9, 2004. On July 9, 2004, Smith contacted the Court to seek permission to file the revised motion on July 12, 2004. The Court granted Smith's request. On July 12, 2004, Smith filed a notice of appearance and a revised motion to dismiss. However, the motion contained a number of deficiencies, including a failure to file an accompanying memorandum of law and references to state law that were improper in a federal court action.
On August 16, 2004, the Court ordered that defendants Greenidge, Greenidge LLC, and their counsel Smith show cause by August 24, 2004 why the Court should not hold defendants in contempt, enter default judgment against both the individual and corporate defendants, and order sanctions imposed against Smith for defendants' (1) repeated failure to file a motion to dismiss, in lieu of an answer, complying with the local rules of the Southern District of New York; (2) failure to attend scheduled Court conferences; and (3) failure to cooperate with discovery. Smith submitted a letter dated August 20, 2004, but received in Chambers on September 16, 2004, claiming that she had failed to attend Court conferences because of traffic delays and a lack of notice, even though Greenidge stated that he had given Smith notice. Smith also stated that she had failed to submit a sufficient motion to dismiss because the Court did not explain to her the local and Court rules and how to comply with them. In subsequent telephone communications with the Court, Smith also explained that she failed to submit an answer to plaintiff's complaint, despite this Court's order to do so, because defendants' motion to dismiss in lieu of the answer absolved her obligation to do so. To date, defendants have not filed an answer. Defendants have also not filed a motion to dismiss that complies with local rules of this District.
II. DISCUSSION
The Court has repeatedly discussed with defendants and Smith the importance of filing an answer to plaintiff's complaint and/or a sufficient motion to dismiss in lieu of an answer. The Court has also provided defendants ample opportunity to file their responses. Despite the Court's accommodations, defendants have failed to file an answer or a motion to dismiss that complies with local rules. Furthermore, Smith's responses to the Court's order to show cause were inadequate because traffic delays and claims of failure to receive notice from Greenidge do not absolve counsel from appearing before the Court when scheduled to do so. Additionally, it is counsel's responsibility to consult and comply with the federal, local, and Court rules regarding motion submissions. While Smith was provided with some guidance on the deficiencies in her filings, the Court has no obligation to explain how to perform the job she was hired to do.
Because defendants have failed to answer the complaint herein, and have failed to properly file a motion to dismiss, IT IS HEREBY ORDERED THAT plaintiff's motion for default against defendant Greenidge LLC be GRANTED, that defendant Greenidge also be held in default, and that defendants' motion to dismiss be DENIED. Plaintiff will submit any affidavits on the issue of damages by April 14, 2005. Plaintiff shall also submit a memorandum of law on the appropriateness of any damages claimed.
SO ORDERED.