Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dillard v. Victoria M. Morton Enterprises

August 24, 2010

MARILYN DILLARD, ET AL., PLAINTIFFS,
v.
VICTORIA M. MORTON ENTERPRISES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is plaintiffs' amended motion to strike the answer of defendants Victoria M. Morton Enterprises, Inc., Suddenly Slender, and Suddenly Slender International (the "Corporate Defendants"), which is set for a hearing on September 2, 2010. (Dkt. No. 54.) Plaintiffs request that the Corporate Defendants' answer to plaintiffs' First Amended Complaint be stricken as a sanction for the Corporate Defendants' failure to appear in this action through counsel and to otherwise defend themselves.*fn1 The court's docket does not reflect the filing of any written opposition to plaintiffs' motion. Having concluded that oral argument would not materially assist the court, the undersigned hereby submits plaintiff's motion on the briefs and record on file and will vacate the hearing date. For the reasons that follow, the undersigned will also grant plaintiff's motion and order that the Corporate Defendants' answer to plaintiffs' First Amended Complaint (Dkt. No. 22) be stricken to the extent that it was filed on behalf of the Corporate Defendants.

I. BACKGROUND

This products liability action, which involves injuries to plaintiffs allegedly caused by a product manufactured and distributed by defendants, has a long and tortured procedural history.*fn2 It is substantially recounted here for the sake of clarity.

Plaintiffs originally filed their complaint in Sacramento Superior Court on April 7, 2008, naming the following defendants: Victoria M. Morton Enterprises, Inc.; Victoria M. Morton, an individual; Suddenly Slender; Suddenly Slender International; Personal Beauty Unlimited, Inc.; Research Foundation for Biochemistry and Nutrition Corp.; Pyramid Consulting and Investment Co., Inc.; and Hot Ticket Enterprises, Inc. (Dkt. No. 1 at 7.) Defendants filed a notice of removal of the action to federal court, invoking the court's federal diversity jurisdiction. (Dkt. No. 1.)

On July 18, 2008, defendants filed a motion to dismiss and motion to strike. (Dkt. No. 6.) On August 21, 2008, while the motions to dismiss and strike were pending, defendants Personal Beauty Unlimited, Inc., Research Foundation for Biochemistry and Nutrition Corp., and Hot Ticket Enterprises, Inc. were dismissed without prejudice pursuant to a stipulation approved by the court. (Dkt. Nos. 9, 10.) On October 8, 2008, the court granted the remaining defendants' motion to dismiss in part, denied it in part, granted plaintiffs' leave to amend their complaint, and denied defendants' motion to strike. (Dkt. No. 19.)

Plaintiffs subsequently filed a First Amended Complaint. (Dkt. No. 20.) The First Amended Complaint alleges claims for: (1) strict products liability; (2) products liability based on manufacturing and design defects; (3) products liability based on a failure to warn; (4) fraud; and (5) products liability on a negligence theory. The remaining defendants-Victoria M. Morton Enterprises, Inc., Suddenly Slender, Suddenly Slender International, Pyramid Consulting and Investment Co., Inc., and Victoria M. Morton, an individual-filed an answer to the First Amended Complaint. (Dkt. No. 22.)

Defendants originally appeared in federal court through an attorney. However, shortly after the filing the answer to the First Amended Complaint, that attorney filed a motion to withdraw as counsel. (Dkt. No. 23.) On February 26, 2009, the court granted the motion to withdraw and cautioned defendants that, pursuant to the court's local rules and case law, defendants Victoria M. Morton Enterprises, Inc., Suddenly Slender, Suddenly Slender International, and Pyramid Consulting and Investment Co., Inc., could not appear in the action without legal counsel because they are corporations. (No. 28 at 2-4; see also E. Dist. Local Rule 183(a).)

On August 14, 2009, plaintiffs filed a request for entry of default as to the unrepresented Corporate Defendants. (Dkt. No. 31.) On September 8, 2009, the court directed the Corporate Defendants and Pyramid Consulting and Investment Co., Inc. to retain legal representation and warned that failure to do so would result in the entry of default against the non-complying corporate defendants. (Dkt. No. 36.) Despite the court's order and the passage of roughly nine months from the time the court granted counsel's motion to withdraw, all of these entity defendants remained unrepresented. Accordingly, on November 25, 2009, the court granted plaintiffs' request for entry of default and directed the Clerk of Court to enter default against Victoria M. Morton Enterprises, Inc., Suddenly Slender, Suddenly Slender International, and Pyramid Consulting and Investment Co., Inc. (Dkt. Nos. 38, 39.)

On March 17, 2010, plaintiffs filed an application for default judgment against the Corporate Defendants. (Dkt. No. 44.) The proof of service filed with the application for default judgment reflects that Victoria M. Morton, an individual defendant appearing without counsel, was served with the application by U.S. Mail. (Dkt. No. 45.) On April 14, 2010, plaintiffs filed a supplemental proof of service indicating that they had served the Corporate Defendants and Pyramid Consulting and Investment Co., Inc. with the application for default judgment.*fn3 (Dkt. No. 49.)

On April 23, 2010, the undersigned denied plaintiffs' application for default judgment in a lengthy order. (Dkt. No. 51.) In short, the undersigned denied plaintiffs' application without prejudice and provided plaintiffs with an opportunity to file supplemental briefing and evidence in support of their application. On June 23, 2010, plaintiffs filed a perfunctory declaration declining the court's invitation to file supplemental materials, but requesting a "prove up" hearing on plaintiffs' application for default judgment. (See White Decl. ¶ 2, Dkt. No. 54.) The prove-up hearing related to plaintiffs' renewed application for default judgment is presently set for September 29, 2010. (Dkt. No. 57.)

On June 29, 2010, the court granted plaintiffs' request for the voluntary dismissal of defendant Victoria M. Morton, and dismissed Ms. Morton from this action without prejudice. (See Dkt. Nos. 42, 43, 47, 55.)

Despite having been served with plaintiffs' application for default judgment and the court's orders, Ms. Morton has not appeared or participated in this action since August 14, 2009. (See Dkt. No. 30.) The Corporate Defendants, for whom Ms. Morton serves or served as a principal, have not appeared or participated ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.