Opinion
19-cv-6203
09-15-2023
JERLIB INVESTORS, LLC, Plaintiff, v. COHN & COHN, ERWIN COHN, CHARLES A. COHN, LEE S. ROSE, JOHN KRCIL, BLACK LION INVESTMENT PARTNERS, INC., BROWN CAPITAL FUNDING INTERNATIONAL, CHRISTOPHER R. BROWN, and STEPHEN HAY, Defendants. COHN & COHN and ERWIN COHN Cross-Plaintiffs, v. LEE S. ROSE, Cross-Defendant, and EDWARD WOOTEN, et al., Third-Party Defendants.
ANDREA R. WOOD, JUDGE
MOTION OF DEFENDANT ERWIN COHN, COHN & COHN, AND CHARLES COHN FOR ENTRY OF DEFAULT AGAINST ALL CROSS-DEFENDANTS AND THIRD-PARTY DEFENDANTS WHO HAVE DEFAULTED
Pursuant to Federal Rule of Civil Procedure 55(a), Erwin and Charles Cohn and Cohn & Cohn (for ease of reference,“the Cohn Defendants”) respectfully move this Court to enter default judgments against the six cross-defendants and one third-party defendant who have defaulted.
In support of the motion, Erwin states as follows:
1. On September 17, 2019, Plaintiff JerLib filed its Complaint. Dkt.1.
2. On February 17, 2021, Cross-Plaintiffs/Third-Party Plaintiffs Charles Cohn and Cohn & Cohn filed their Crossclaims and Third-Party Claims against six Cross-Defendants Rose, Krcil, Black Lion, Brown, BCFI, and Hay and one Third-Party Defendant Wooten. Dkt.110.
3. On February 18, 2021, Plaintiff JerLib filed its Second Amended Complaint. Dkt.111.
4. On March 10, 2021, Cross-Plaintiff Erwin Cohn filed his Crossclaims and Third-Party Claims against six Cross-Defendants Rose, Krcil, Black Lion, Brown, BCFI, and Hay. Dkt.120.
5. It is undisputed that each of these seven cross- or third-party defendants were served between May 5, 2021 and February 8, 2022, and all but one was served twice.
Defendant
Served by Charles & Firm
Served by Erwin
Answers Due
Lee Rose
February 18, 2021
March 10, 2021
March 10, 2021 March 21, 2021
John Krcil
May 5, 2021
September 13, 2021
May 26, 2021 & October 4, 2021
Black Lion
May 5, 2021
September 14, 2021
May 26, 2021 & October 5, 2021
Brown Capital
May 5, 2021
September 27, 2021
May 26, 2021 & October 18, 2021
Stephen Hay
May 5, 2021
September 27, 2021
May 26, 2021 & October 18, 2021
Christopher Brown
May 13, 2021
February 8, 2022
June 3, 2021 & March 1, 2022
Edward Wooten
May 13, 2021
Not a Cross-Defendant of Erwin
June 3, 2021
6. In June 2021, JerLib filed motion for default against six of seven of these parties (all but Wooten). Dkts.153, 154. In June through August 2021, the Cohn Defendants also sought default judgments against the same six defendants, as well as Defendant Wooten. Dkts. 155, 167, 173, 201.
7. On March 30, 2022, this Court granted JerLib's motions and granted default judgments against six defendants, Dkt., 205, at 4-5, but denied without prejudice the motions of the Cohn Defendants on the ground that “entering default judgment on Cohn Defendants' and Erwin's claims raises the prospect of logically inconsistent adjudications as to their liability” and was therefore premature. Id. at 5-6, citing Marshall & Ilsley Tr. Co. v. Pate, 819 F.2d 806, 811 (7th Cir. 1987), citing Frow v. De la Vega, 82 U.S. (15 Wall.) 552 (1872). As the Court in Marshall explained, however, the Seventh Circuit “has read narrowly the restriction on inconsistent judgments established in Frow.” Id. at 812. The appellate court explained the way in which the Frow principle was unique to the facts in Frow and identified specific cases in which the entry of a default judgment was appropriate notwithstanding a potential future inconsistent verdict. Id.
8. Equally, if not more, importantly, the Court's conclusion that the Cohn Defendants' default motions were premature occurred in March 2022, which was more than a year before this Court granted judgment on three counts in favor of JerLib and against the Cohn Defendants, in March 2023, Dkt.279, and before the Court set December 4, 2023, as the trial date in this case. Dkt.XXX. At this point, with the trial approaching, default judgment against these cross-Defendants and third-party Defendant is wholly appropriate. It would be wholly unreasonable for the Court to inform the jury of liability judgments entered against the Cohn Defendants, but not enter (and inform the jury of) judgments against the cross- and third-party defendants - parties duly named and served - who have refused to participate in this case.
WHEREFORE, the Cohn Defendants respectfully request this Court to enter default judgments on all counts against the six cross-defendants and one third-party defendant identified above.
Respectfully Submitted, ERWIN COHN
Stuart J. Chanen
Chanen & Olstein
CHARLES COHN
COHN & COHN
Charles A. Cohn