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Galtieri-Carlson v. Victoria M. Morton Enterprises

August 24, 2010

RUTH GALTIERI-CARLSON, 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. 40.) 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. 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 answer to plaintiffs' First Amended Complaint (Dkt. No. 21) on file herein 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.*fn1 It is substantially recounted here for the sake of clarity.

On July 31, 2008, plaintiffs filed their complaint in this court against the Corporate Defendants and Victoria M. Morton, an individual. (Dkt. No. 1.) Initially, defendants were represented by counsel.

Plaintiffs subsequently filed a First Amended Complaint, which alleged 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. (Dkt. No. 17.) Defendants filed an answer to the First Amended Complaint. (Dkt. No. 21.)

After the filing of the answer, defendants' counsel filed a motion to withdraw as from the representation. (Dkt. Nos. 23-24.) On February 26, 2009, the court granted the motion to withdraw and cautioned defendants that, pursuant to the court's local rules and applicable case law, the Corporate Defendants could not appear in the action without legal counsel because they are corporations. (Dkt. No. 26 at 2-4; see also E. Dist. Local Rule 183(a).)

The Corporate Defendants failed to retain counsel despite the court's order directing them to do so, and the court's related warning that failure to do so would result in the entry of default against non-complying corporate defendants. (See Dkt. No. 28.) Accordingly, on November 25, 2009, the court granted plaintiffs' request for entry of default and directed the Clerk of Court to enter default against the Corporate Defendants. (Dkt. Nos. 30, 31.)

On March 17, 2010, plaintiffs filed an application for default judgment in the related Dillard case, which the court deemed filed in this case. (See Galtieri-Carlson, Dkt. No. 34; Dillard, Dkt. No. 44.) On April 14, 2010, plaintiffs in the Dillard action filed a proof of service indicating that they served the Corporate Defendants, which are defendants in that action, with the application for default judgment.

On April 23, 2010, the undersigned denied plaintiffs' application for default judgment in a lengthy order. (Dkt. No. 36.) 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. 40.) The undersigned granted plaintiff's request for a hearing, and the prove-up hearing related to plaintiffs' renewed application for default judgment is presently set for September 29, 2010. (Dkt. No. 43.)

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. 37, 41.)

Despite having been served with plaintiffs' application for default judgment and the court's orders, the docket reveals that Ms. Morton has not appeared or participated in this action since withdrawal of counsel for both her and the Corporate Defendants in February of 2009. The same is true of the Corporate Defendants, for whom Ms. Morton serves or served as a principal.

II. DISCUSSION

Plaintiffs' request that the court strike the Corporate Defendants' answer to the First Amended Complaint on the grounds that a corporation or similar entity may not appear in federal court without counsel. Plaintiffs' motion is not premised on Federal Rule of Civil Procedure 12(f). Instead, it appears to be a motion for a sanction in the form of an order striking the Corporate Defendants' answer, which would be ...


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