Opinion
Civil Action No. 3:99CV-136-S
July 27, 1999
MEMORANDUM OPINION AND ORDER
This matter is before the court on motion of the plaintiff, Kenneth H. Mandell ("Mandell"), to strike and for default judgment in this action brought under the court's diversity jurisdiction.
Mandell's complaint alleges, in essence, breach of contract and fraud in the sale of a herd of horses which he purchased in early 1998. The complaint was filed on March 8, 1999. On April 20, 1999, the defendants, Estate of Harold W. "Buck" Hinson, et al., filed motions to dismiss the complaint. These motions were filed on behalf of the defendants by an attorney licensed to practice in the state of Missouri. He did not seek admission pro hac vice to practice before this court in the case at the time the motions were filed, as provided for in Rule 83.2 of the Joint Local Rules of this court. On May 7, 1999, Mandell filed a motion to strike the motions to dismiss on the ground that the motions filed by an attorney not licensed to practice within the jurisdiction are not properly before the court. He then sought default judgment on the ground that the defendants had, therefore, failed to appear, plead, or otherwise respond to the complaint. On May 10, 1999, a notice of appearance was filed by a Louisville law firm as co-counsel for the defendants in the case. Additionally, they filed a response to the motion to strike and for default judgment, acknowledging that Missouri counsel did not have Louisville co-counsel in April, but contending that the harsh sanction sought by the plaintiff is inappropriate in this instance. The court agrees.
Mandell cites foreign state court decisions, a number of decisions from other district courts, and Sixth Circuit Rule 6(a), none of which constitute binding authority for this court. The court has been shown no authority from this circuit that the motions to dismiss should be stricken in an instance where they were initially filed without pro hac vice leave, but where the omission has been promptly remedied by the retention, appearance, and participation by local co-counsel. The court, in its discretion, will deny the motion to strike in favor of the preferred method of a fulsome evaluation of the action on its merits. Mandell will be granted the fifteen days he seeks in which to respond to the motions, and the normal reply time will also apply.
It does not appear that this rule stands for the proposition for which it was cited in the plaintiff's brief.
The court's ruling on the motion to strike renders the motion for default moot, inasmuch as the premise urged for default was that the pleadings filed by Missouri counsel should not be recognized as responsive pleadings in the case; a premise we have rejected. However, we would note that
[j]udgment by default is a drastic step which should be resorted to only in the most extreme cases . . . Trials on the merits are favored in federal courts and a "glaring abuse" of discretion is not required for a reversal of a court's refusal to relieve a party of the harsh sanction of default . . . "Any doubt should be resolved in favor of the petition to set aside the judgment so that cases may be decided on their merits." [citations omitted].United Coin Meter Company, Inc. v. Seaboard Coastline Railroad, 705 F.2d 839, 845-46 (6th Cir. 1983). The sanction sought by the plaintiff is simply not favored in this circuit, in the absence of a showing of willful misconduct or negligence.
Motions having been made and for the reasons set forth herein above and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that:
1. The motion of the plaintiff, Kenneth H. Mandell, to strike and for default judgment (DN 4) is DENIED.
2. The motion of the plaintiff, Kenneth H. Mandell, for extension of time in which to respond to the motions to dismiss (DN 6) is GRANTED, and the plaintiff is granted FIFTEEN DAYS FROM THE DATE OF ENTRY OF THIS ORDER in which to file his response to the motions. Normal reply time will apply.
IT IS SO ORDERED.