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.

Champion-Cain v. MacDonald

United States District Court, S.D. California

March 20, 2017

GINA CHAMPION-CAIN, an individual; LUV SURF, LP, a California limited partnership; ANI COMMERCIAL CA I, LLC, a California limited liability company; and ANI COMMERCIAL CA II, LP, a California limited partnership, Plaintiffs,
v.
BRIAN MACDONALD, an individual; LOVESURF, INC., a Delaware corporation; and DOES 1-10, inclusive, Defendants.

          NOTICE OF TENTATIVE RULING DENYING WITHOUT PREJUDICE PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT AND PERMANENT INJUNCTION AGAINST DEFENDANT LOVESURF, INC. [ECF NO. 154.]

          Hon. Gonzalo P. Curiel United States District Judge.

         Before the Court is Plaintiffs and Counter-Defendants Gina Champion-Cain, Luv Surf, L.P., ANI Commercial CA I, LLC, and ANI Commercial CA II, L.P.'s (collectively, “Plaintiffs'”) motion for default judgment against Defendant Lovesurf, Inc. (“Defendant” or “Lovesurf, Inc.”) for $332, 272, and (2) a permanent injunction.[1] (Dkt. No. 154.) To date, Defendant Lovesurf, Inc. has not retained counsel in accordance with Civil Local Rule 83.3 or timely filed a response to Plaintiffs' motion.[2] (Dkt. No. 155.) A motion hearing is scheduled for March 24, 2017.

         Based on the applicable law, the Court is prepared to DENY WITHOUT PREJUDICE Plaintiffs' motion for default judgment and a permanent injunction against Defendant Lovesurf, Inc.

         RELEVANT PROCEDURAL BACKGROUND

         Plaintiffs filed the instant action on October 23, 2014. (Dkt. No. 1.) Defendants Brian MacDonald and Lovesurf, Inc., while represented by counsel, filed an Amended Answer and Counterclaim on September 10, 2015. (Dkt. No. 64.) Plaintiffs filed an Amended Answer to the Counterclaim on September 21, 2015. (Dkt. No. 66.)

         On July 29, 2016, defense counsel filed a motion to withdraw from representation of Defendants on the basis that Defendants had failed to pay any fees or expenses for five months, and had indicated no intention or ability to pay anything in the future. (Dkt. No. 86.) The Court conducted multiple hearings regarding defense counsel's withdrawal. (Dkt. Nos. 104, 111, 123.) Because trial was set for October 17, 2016, (Dkt. No. 91), the Court conditioned defense counsel's withdrawal on filing motions in limine for Defendants and/or responding to Plaintiffs' motions in limine, (Dkt. No. 111.) After defense counsel duly complied, (Dkt. Nos. 120, 121), the Court granted defense counsel's motion to withdraw from representation of Defendants on October 14, 2016, (Dkt. No. 123). The Court then vacated the trial date and reset it to February 21, 2017. (Id.)

         Subsequently, the Court confirmed at multiple hearings that Defendant Lovesurf, Inc. was still unrepresented. (Dkt. Nos. 128, 142, 148.) The Court stated in its Order denying Plaintiffs' renewed motion for preliminary injunction:

Civil Local Rule 83.3(j) provides that corporations “may appear in court only through an attorney permitted to practice pursuant to Civil Local Rule 83.3.” Defendant Lovesurf, Inc. presently does not have counsel and may not appear in court absent representation. Because the Court denies Plaintiffs' renewed motion for a preliminary injunction on the merits, the Court does not address at this time Defendant Lovesurf, Inc.'s failure to procure counsel. The Court reiterates its admonition to Defendant Lovesurf, Inc. that it may become subject to default should it fail to retain counsel.

(Dkt. No. 131 at 2 n.1.)

         On January 17, 2017, Plaintiff moved to strike Defendant Lovesurf, Inc.'s Amended Answer, dismiss its Counterclaim, and enter default as to Defendant Lovesurf, Inc. (Dkt. No. 132.) At a status hearing on January 27, 2017, at which Defendant Brian MacDonald failed to appear, the Court granted Plaintiffs' motion and directed the Clerk of the Court to enter default as to Defendant Lovesurf, Inc. (Dkt. Nos. 139, 140, 141.)

         Subsequently, the Court conducted an Order to Show Cause hearing regarding Defendant Brian MacDonald's failure to appear at the January 27, 2017 status hearing. (Dkt. No. 142.) At the hearing, Defendant Brian MacDonald orally represented to the Court that he had secured representation for Defendants, and that Defendant Lovesurf, Inc. had filed a petition for bankruptcy in the Central District of California.[3] (Dkt. No. 143.) The Court ascertained that it had prematurely granted Plaintiffs' motion to strike on January 27, 2017, prior to the scheduled motion hearing date on February 17, 2017. (Dkt. Nos. 133, 139, 140.) Pursuant to Federal Rule of Civil Procedure 60(a), the Court accordingly vacated the Clerk's entry of default as to Lovesurf, Inc. and vacated its Order striking Defendant Lovesurf, Inc.'s Amended Answer and dismissing its Counterclaim. (Dkt. Nos. 142, 143.) The Court reinstated the February 17, 2017 hearing regarding Plaintiffs' motion to strike, deferring ruling on the motion until Defendants had an opportunity to appear and respond. (Id.)

         On February 16, 2017, a day prior to the scheduled motion hearing on February 17, 2017, Plaintiffs notified the Court that the United States Bankruptcy Court for the Central District of California had dismissed Defendant Lovesurf, Inc.'s case (Case No. 8:17-bk-10394-CB) for failure to file requisite documents and vacated the automatic stay as to Defendant Lovesurf, Inc. (Dkt. No. 147.)

         On February 17, 2017, the Court conducted a hearing on Plaintiffs' motion to strike and confirmed with Defendant Brian MacDonald that Defendant Lovesurf, Inc. is still unrepresented by counsel. (Dkt. Nos. 148, 149.) Because corporations may not appear in this Court without an attorney, see CivLR 83.3, the Court granted Plaintiffs' motion to strike Defendant Lovesurf, Inc.'s Amended Answer and dismiss its Counterclaim, and directed the Clerk of the Court to enter default as to Defendant Lovesurf, Inc. (Id.) Default was accordingly entered as to Defendant Lovesurf, Inc. (Dkt. No. 150.)

         Defendant Brian MacDonald also informed the Court that he had filed a voluntary petition for bankruptcy in the Central District of California that same day. (Dkt. No. 151.) Accordingly, the jury trial set for February 21, 2017 was vacated, (Dkt. No. 148), and ...


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.