The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE ANSWER
ORDER ENTERING DEFENDANT'S DEFAULT (Docs. 52 and 54)
Pending before the court is Microsoft Corporation's ("Plaintiff") motion filed on February 10, 2009 to strike John Maturano's ("Defendant") Answer and enter default based on Defendant's failure to participate in discovery. Alternatively, Plaintiff seeks an order compelling discovery. Defendant did not file an opposition to the motion. A hearing was held on March 6, 2009. Jennifer Chiarelli appeared telephonically on behalf of the Plaintiff. Defendant personally appeared pro se. Having considered all of the filings and arguments in this matter, Plaintiff's Motion to Strike Defendant's Answer is GRANTED. Defendant's Answer shall be stricken and default shall be entered against Defendant.
On December 4, 2006, Plaintiff filed a Complaint to recover damages arising from alleged infringement of Microsoft's copyrights and trademarks of its software and related components by the Defendant (Doc. 2). Plaintiff alleges that Defendant distributed counterfeit and infringing Microsoft software and components, despite Microsoft's requests that Defendant cease and desist from this conduct. On January 8, 2007, Defendant, proceeding in pro se, timely filed an Answer.*fn1 (Doc. 8). On November 2, 2007, Plaintiff filed a Motion to Strike Defendant's Answer and Enter Default because Defendant had ceased participating in the litigation. The basis of the motion was that Defendant had failed to keep Plaintiff and the court apprised of his address for approximately five months. (Docs. 18, 19, and 20). On December 27, 2007, this court issued Findings and Recommendation recommending that Plaintiff's motion be granted. (Doc. 30).*fn2 On February 6, 2008, the Findings and Recommendation was adopted by United States District Court Judge Oliver W. Wanger. (Doc. 35). Defendant's Answer was stricken and default was entered on February 6, 2008. (Doc. 36).
On March 11, 2008, Microsoft filed a motion for default judgment and permanent injunction against Defendant. (Doc. 39). Defendant did not file an opposition to the motion, however, he did appear at the April 11, 2008 hearing. This court denied Microsoft's motion for default without prejudice and informed Defendant that he could file a motion to set aside the entry of default. (Doc. 42). On May 8, 2008, Defendant, appearing pro se, filed a motion to set aside the entry of default. (Doc. 44). The court held a hearing on June 27, 2008, and thereafter granted Defendant's motion to set aside. The court vacated the findings and recommendation issued on December 27, 2007. (Doc. 47).
On July 24, 2008, a scheduling conference was held before the Honorable Oliver W. Wanger and both parties appeared. (Doc. 51). The scheduling conference order required that all initial disclosures be made by August 25, 2008, and that all discovery by completed by January 30, 2009.
After the filing of instant motion on February 10, 2009, a settlement conference was held on February 19, 2009 before this court. Plaintiff was represented by Jennifer Chiarelli via telephone, and Defendant did not appear. On March 2, 2009, Plaintiff subsequently filed a memorandum and supplemental declaration in support of its motion.
On March 5, 2009, Plaintiff filed an ex parte application to continue pretrial and trial dates. (Doc. 57). Plaintiff had attempted to contact Defendant on March 3, 2009 via voicemail and by letter regarding the ex parte application. Declaration of Jennifer N. Chiarelli dated February 5, 2009 at ¶ 6 ("Chiarelli Declaration") (Doc. 55-2). On March 4, 2009, Ms. Chiarelli received a voicemail from Defendant indicating that he did not oppose a continuance and that he had received Microsoft's discovery requests and the motion to strike his answer. Defendant informed Ms. Chiarelli that he intended on appearing at the hearing on March 6, 2009 before this court.
A. The Discovery Violations
Plaintiff has not received Defendant's initial disclosures. Declaration of Jennifer N. Chiarelli dated February 10, 2009 at ¶ 7 ("Chiarelli Declaration") (Doc. 52-3). In addition, on November 7, 2008, Microsoft served Defendant with its first set of interrogatories and first set of requests for production of documents ("written discovery requests"). Chiarelli Declaration at ¶ 2 and Exhibit A. (Doc. 52-3). Defendant has not replied to Plaintiff's written discovery requests. In January 2009, Plaintiff's counsel attempted to contact Defendant numerous times via telephone and left voicemail messages to discuss the failure to respond, as well as to inform Defendant that Plaintiff would be noticing his deposition. Chiarelli Declaration at ¶ 3. Defendant did not respond to the messages. Id.
Finally, on January 15, 2009, Plaintiff noticed Defendant's deposition for January 27, 2009.
Chiarelli Declaration at ¶ 4 and Exhibit B. Defendant did not appear for his deposition. Chiarelli Declaration at ¶ 5 and Exhibit C. By letter dated February 9, 2009, Plaintiff's counsel informed Defendant of her desire to meet and confer regarding the discovery dispute. Chiarelli Declaration at ¶ 6 and Exhibit D. Defendant had not contacted Plaintiff's counsel regarding his initial disclosures, the written discovery requests, or the February 9, 2009 letter. Supplemental Declaration of Jennifer N. Chiarelli dated March 2, 2009 at ¶¶ 3 and 4. (Doc. 54-1). Plaintiff's counsel informed the court that she has had no contact with Defendant since the scheduling conference in July 2008.
At the hearing, Defendant acknowledged that he had received all of Plaintiff's written discovery requests, but stated that he never received any voicemails from Plaintiff's counsel regarding the discovery. Defendant confirmed that he had not replied to the requests and indicated that his noncompliance was due to the fact that the requests were numerous and he was still going through the materials. He thought that he had until March 13, 2009 to respond to them.*fn3 When asked why he did not attend the settlement conference, Defendant indicated that he was confused regarding the dates - because the dates in the heading of the scheduling order were not chronological, he thought that the settlement conference was in March 2009 ...