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All Points Capital Corporation, A New York v. Foster and Sons General Engineering Contractors

February 23, 2011

ALL POINTS CAPITAL CORPORATION, A NEW YORK CORPORATION,
PLAINTIFF,
v.
FOSTER AND SONS GENERAL ENGINEERING CONTRACTORS, INC., ENGINEERING CONTRACTORS, INC., A JAMES B. FOSTER AND OTILIA T. CALIFORNIA CORPORATION, JAMES B. FOSTER, FOSTER AN INDIVIDUAL, AND OTILIA T. FOSTER, AN INDIVIDUAL,
DEFENDANTS.



The opinion of the court was delivered by: Gary S.Austin United States Magistrate Judge

JUDGMENT AGAINST DEFENDANTS FOSTER AND SONS GENERAL ORDER STRIKING PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT (Docket No. 22)

On January 12, 2011, Plaintiff All Points Capital Corporation ("Plaintiff") filed a Request for Default Judgment Against Defendants Foster and Sons General Engineering Contractors, Inc., James B. Foster and Otilia T. Foster. (Doc. 22.) On February 9, 2011, the Court vacated the hearing of February 11, 2011, and the matter was taken under submission. (Doc. 23.)

BACKGROUND

Plaintiff filed the instant action on May 7, 2010. The complaint asserts a number of causes of action, including a breach of promissory note and security agreement, breach of guaranty, and foreclosure on security agreement - claim and delivery. Plaintiff sought damages in excess of $750,000. (Doc. 2.) Summonses were issued on May 10, 2010. (Docs. 4-6.)

On November 18, 2010, this Court issued an Order to Show Cause for Plaintiff's failure to comply with Rule 4 of the Federal Rules of Civil Procedure by failing to serve Defendants with the summons and complaint. (Doc. 10.)

That same date, rather than respond in writing as requested, Plaintiff filed proofs of service for two named Defendants: James B. Foster and Otilia T. Foster. (Docs. 12-13.) Additionally, Plaintiff filed a request for Clerk's Entry of Default as to all Defendants. (Doc.14.)

On November 23, 2010, the Clerk of the Court entered default as to Defendants James B. Foster and Otilia T. Foster only. (Doc.15.)

On December 12, 2010, this Court issued Findings and Recommendations as to the dismissal of Defendant Foster and Sons General Engineering Contractors, Inc. ("Foster and Sons"). Specifically, the Court recommended dismissal of Defendant Foster and Sons for it had not been served with service of process. (Doc. 16.)

Rather than file objections to the Findings and Recommendations, on December 13, 2010, Plaintiff filed a proof of service indicating that Foster and Sons had in fact been served on May 26, 2010. Plaintiff also requested default be entered by the Clerk against Foster and Sons. (See Docs. 17-18.)

On December 15, 2010, the Clerk entered default against Defendant Foster and Sons. (Doc. 20.) On December 17, 2010, this Court issued its Order Vacating the earlier findings wherein the Court recommended dismissal of Foster and Sons. (Doc. 21.)

On January 12, 2011, Plaintiff filed the instant request for entry of default judgment against all Defendants. (Doc. 22.)

LEGAL STANDARD

Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that judgment may be entered as follows:

By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or competent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 3 days before the hearing. The court may conduct hearings or make ...


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