Opinion
CASE NO. 8:09-CV-623-T-17EAJ.
May 2, 2011
ORDER
This cause is before the Court on:
Dkt. 57 Motion for Entry of Default and Cancellation of Pretrial Conference The Court entered an order granting Plaintiff's Motion for Partial Summary Judgment as to liability, and has set a jury trial on the issue of damages as to Count I. (Dkts. 53, 54, 55).The Court notes that Defendant Key Financial Corporation filed an Answer and Affirmative Defenses to the Amended Complaint, and filed a Counterclaim (Dkt. 14). Thereafter Defendant Key Financial Corporation participated in discovery, filed a dispositive motion, and responded to Plaintiff's dispositive motion. However, Defendant's counsel moved to withdraw on 2/14/2011 (Dkt. 51), stating that counsel has been unable to contact Defendant Key Financial Corporation for several months. Defendant Key's in-house legal counsel, Jeffrey Dell, communicated to defense counsel that as of 9/25/2010, he was no longer employed by Key Financial Corporation, and believed the company has shut down. (Dkt. 51-1).
The Court granted the motion to withdraw, by an endorsed order (Dkt. 52) which states:
"ENDORSED ORDER granting 51 Unopposed Motion to Withdraw as attorney for Defendant/Counterclaimant Key Financial Corporation. The Court notifies Defendant/Counterclaimant that Local Rule 2.03(e) provides that a corporation may appear and be heard only through counsel admitted to practice in this Court. Defendant shall obtain new counsel within fourteen days. Failure to obtain new counsel may result in the entry of an adverse judgment. If no appearance of counsel is filed within fourteen days, the Court will assume that Defendant does not intend to obtain new counsel. The Clerk of Court shall enter the following address for service: Registered Agent Solutions, Inc., 155 Office Plaza Dr., Suite A, Tallahassee, FL, 32301."
The docket reflects that a copy of the above order was mailed to Defendant Key Financial Corporation on 2/15/2011.
Plaintiff Lehman Brothers Holdings, Inc. ("LBHI") now moves for entry of default and for cancellation of the pretrial conference based on Defendant's failure to obtain new counsel in accordance with the above Order. Plaintiff LBHI argues that the Court has already granted summary judgment to LBHI as to liability, and the measure of damages is capable of being presented by LBHI upon affidavit and supporting papers, and therefore the pretrial conference scheduled for May 17, 2011 is no longer necessary. Plaintiff LBHI argues that the pretrial conference should be cancelled in the interest of judicial economy and the avoidance of out-of-state travel by LBHI's representative, given that LBHI can establish proof of damages by submission of documentary evidence.
Plaintiff LBHI certified that Plaintiff attempted to confer with the pro se corporate defendant by mailing a copy of the motion with a cover letter requesting contact to advise of Defendant's position as to the relief requested to Defendant's Registered Agent and to Defendant's principal business address registered with the Florida Department of State, Division of Corporations, 3631 131st Ave. N., Clearwater, FL, 33762.
The Court notes that Defendant Key Financial Corporation has been given an ample opportunity to comply with the Court's order to obtain counsel, but has not done so. When Defendant Key was represented by counsel, after a certain point, Defendant's counsel could not contact Defendant Key, and was informed that Defendant had "shut down." Defendant's refusal to continue its participation in this case does not prevent Plaintiff LBHI from obtaining a final judgment on damages. A corporate defendant's failure to obtain counsel is a failure to "otherwise defend" under Fed.R.Civ.P. 55(a). After consideration, the Court finds that Defendant's failure to obtain new counsel in accordance with the Court's order is willful; Defendant Key Financial has abandoned the defense of this case. The Court grants Plaintiff LBHI's motion for entry of default, and the Clerk of Court shall enter a default against Defendant Key Financial Corporation as to the issue of damages.
The Court will cancel the pretrial conference scheduled for May 17, 2011 and will remove this case from the trial calendar for June, 2011. Within fourteen days of entry of the Clerk's default, Plaintiff LBHI shall file Plaintiff's motion for default judgment as to damages, with appropriate documentation. Accordingly, it is
ORDERED that Plaintiff's Motion for Entry of Default and Cancellation of the Pretrial Conference (Dkt. 57) is granted. The Clerk of Court shall enter a default against Defendant Key Financial Corporation as to damages on Count I of the Amended Complaint.
DONE AND ORDERED in Chambers, in Tampa, Florida.