The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER GRANTING DEFENDANT'S MOTION TO SET ASIDE DEFAULT AND DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
Plaintiff, Solar Liberty Energy Systems, Inc., filed a Motion for Default Judgment (Doc. No. 8) on August 2, 2011. Defendant Marc Suacci (Suacci) filed a Motion to Set Aside Default (Doc. No. 15) on October 12, 2011. Plaintiff filed an opposition (Doc. No. 18), Defendant Suacci filed a reply (Doc. No. 19), and Plaintiff filed a sur-reply (Doc. No. 20). The Court finds these motion appropriate for submission on the papers without oral argument pursuant to Local Civil Rule 7.1.d.1. Based upon the parties' moving papers and for the reasons set forth herein, Defendant's motion to set aside default is hereby GRANTED, and Plaintiff's motion for default judgment is DENIED.
Plaintiff Solar Liberty Energy Systems, Inc. engages in the business of selling and installing solar modules. (Doc. No. 18 at 1.) Plaintiff agreed to purchase solar modules from Captain Voltage and E-Village LLC for the total amount of $971,349.00 in early 2006. (Doc. No. 18 at 2.) Plaintiff claims that merchandise totaling $823,696.00 was delivered, with $147,653.00 in merchandise undelivered. Id. Plaintiff also claims to have incurred $2,950.00 for freight charges that Captain Voltage and E-Village LLC agreed to pay but failed to do so. Id.
On January 12, 2010, Plaintiff obtained a default judgment in the United States District Court in the Western District of New York in the amount of $201,103.96 against Captain Voltage and E-Village,
Id. The judgment was entered against Captain Voltage and E-Village, LLC on February 24, 2010. Id. On March 14, 2011, Plaintiff received an "Exemplification Certificate" from the United States District Court for the Western District of New York for the February 24, 2010 judgment. (Decl. Simenton, ¶ 2; Exhibit 2.) On March 18, 2011, Plaintiff obtained a Clerk's Certification of Judgment, which was registered in California. Id. On March 24, 2011, Plaintiff obtained a Writ of Execution for $220,631.83, plus daily interest at the rate of $49.59. (Decl. Simenton, ¶ 2; Exhibit 3.)
Following entry of judgment, Plaintiff alleges that Captain Voltage became a suspended corporation and that Suacci and Defendant Shane Shaw (Shaw) transferred the assets of Captain Voltage and/or E-Village, LLC to themselves and/or E-Village, Inc. in order to avoid paying the judgment amount. (Compl. ¶ 30.) Plaintiff claims that Suacci and Shaw are or were the owners of Captain Voltage and E-Village, LLC. (Compl. ¶ 31.) Plaintiff also contends that E-Village, Inc. agreed to be liable for the amount due under agreement by Captain Voltage and E-Village LLC, through its owners, Suacci and Shaw. (Compl. ¶ 32.) Plaintiff alleges Suacci and Shaw have acknowledged and agreed in writing that Plaintiff is owed the judgment amount of $201,103.96. Id. Plaintiff claims that Captain Voltage and E-Village Solar LLC are the Defendants' agent and alter ego, yet Suacci and Shaw have held themselves personally liable for the debt. Id.
Plaintiff alleges that Shaw, E-Village Inc., and Suacci could not be added to the 2010 New York judgment in California, because it was obtained by default. (Doc. No. 18 at 2.) Plaintiff thus retained local counsel and filed the instant Complaint against Shaw, E-Village Inc., and Suacci on April 26, 2011. (Doc. No. 18 at 3.)
On April 26, 2011, the Complaint was filed and a Summons and Complaint issued. (Decl. Simenton, ¶ 9; Doc. No. 1, 2.) On June 14, 2011, Plaintiff alleges that the Summons and a copy of the Complaint were properly and timely served upon Suacci. (Decl. Simenton, ¶ 9; Doc. 3, 14.) Accordingly, Suacci would have been required to file a responsive pleading on or before July 5, 2011, which was twenty-one (21) days after service of the Summons and Complaint, pursuant to FRCP 12(a)(1)(A). (Decl. Simenton, ¶ 9.)
Suacci did not file a responsive pleading, appear, or defend the suit in any way. (Decl. Simenton, ¶ 9.) As a result, on July 18, 2011, the Clerk entered default against Suacci for failing to answer the Complaint. (Decl. Simenton, ¶ 9; Doc. No. 7.) On August 2, 2011, Plaintiff filed a Motion for Default Judgment against Suacci in the amount of $201,103.96, plus interest accruing at $49.59 per day from February 24, 2010. Id. On October 12, 2011, Suacci filed a Motion to Set Aside Default. (Doc. 15-1.) This Court had initially set the hearing on the motion for entry of default for October 14, 2011, but continued it to November 10, 2011.
A. Motion to Set Aside ...