CMS Wireless LLC v. Fidelity & Deposit Company of Maryland et al

Filing 36

ORDER denying 35 Motion for Reconsideration re 25 Clerk's Entry of Default filed by C Prince & Associates Consulting Inc, Prince & Associates, Crown Management Inc ; granting 29 Motion for Leave to File Third Amended Complaint and directing the plaintiff to file its Third Amended Complaint by 5:00 p.m., Friday, December 16, 2011. The Clerk's Default entered on November 3, 2011, is premature and therefore is set aside. Signed by Judge Billy Roy Wilson on 12/9/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CMS WIRELESS, LLC
vs.

PLAINTIFF
4:11CV00755-BRW

FIDELITY & DEPOSIT COMPANY
OF MARYLAND, et al.

DEFENDANTS
ORDER

Pending is Clovis Prince’s pro se Motion for Reconsideration and to Set Aside Order
(Doc. No. 35). Mr. Prince is not a party to this case, but the following Defendant corporations
owned by him are: Crown Project Management, Inc.; C. Prince & Associates Consulting, Inc.;
and Crown Management, Inc. Defendant Crown Project Management, Inc. appears to be doing
business as Prince & Associates,1 another Defendant in this case. Mr. Prince attempted to
represent his corporations in this case.2 However, only a licensed attorney may represent a
corporation, and Mr. Prince is aware of that fact.3 Mr. Prince again seeks to represent his
companies in the case. His Motion (Doc. No. 35) is DENIED.
Also pending is Plaintiff’s Motion for Leave to Amend Second Amended Complaint
(Doc. No. 29). Defendant AT&T Mobility LLC has responded,4 and Plaintiff has replied.5
Defendants Crown Project Management, Inc. and C. Prince & Associates Consulting, Inc. are in

1

The Chapter 7 bankruptcy petition for Crown Project Management shows that the
company is d/b/a Prince & Associates. No. 09-43628 (Banrupt. E.D. Tex.)
2

See, for example, Doc. No. 8.

3

Doc. Nos. 16, 31.

4

Doc. No. 30.

5

Doc. No. 33.
1

bankruptcy. Plaintiff asks to amend its second amended complaint to add Michelle Chow, the
bankruptcy trustee for Defendants Crown Project Management, Inc. and C. Prince & Associates
Consulting, Inc., as Defendant. It appears that if Plaintiff had not added the bankruptcy trustee
as Defendant, any default judgment against the debtors or their d/b/a could be unenforceable
against the bankruptcy estate.6 Plaintiff’s motion to amend is GRANTED. Plaintiff is directed
to file the Third Amended Complaint attached to its Motion by 5:00 p.m., Friday, December 16,
2011.
On October 27, 2011, Plaintiff filed a motion for default judgment against Defendants
Crown Management, Inc., Crown Project Management, Inc., and C. Prince and Associates, Inc.
because these Defendants had not answered Plaintiff’s Second Amended Complaint.7 The
clerk’s default was entered on November 3, 2011.8 The entry of default does not determine any
rights, but is a procedural step in obtaining default judgment.
After the clerk’s default was entered, but before Plaintiff’s request for default judgment
had been resolved, Plaintiff filed its motion to amend. Defendant AT&T Mobility LLC
suggested that Plaintiff’s request for default judgment be denied as moot as a result of Plaintiff’s
Third Amended Complaint.9 I agree.

6

See Bellini Imports, Ltd. v. Mason & Dixon Lines, Inc., 944 F.2d 199, 202 (4th Cir.

1991).
7

Doc. No. 18.

8

Doc. No. 25. A “default” is when a defendant failed to answer or otherwise respond to a
complaint, and an “entry of default” is what the clerk of the court enters when it is established
that a defendant is in default. See New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir.
1996).
9

Doc. No. 30.
2

A pleading that has been amended under Federal Rule of Civil Procedure 15(a)
supersedes the earlier pleading and renders it of no legal effect. In light of Plaintiff’s Third
Amended Complaint, Plaintiff’s Second Amended Complaint has no legal effect. Defendants
have the opportunity, once served, to answer Plaintiff’s Third Amended Complaint.
Because Defendants may answer Plaintiff’s Third Amended Complaint, the entry of
clerk’s default is premature and good cause exists for setting it aside. The entry of clerk’s
default is set aside for good cause under Federal Rule of Civil Procedure 55(c).10 Plaintiff’s
motion for default judgment (Doc. No. 18) is DENIED as MOOT.11
IT IS SO ORDERED this 9th day of December, 2011.

/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

10

A court may set aside an entry of default for good cause without motion. Judson
Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 385 (7th Cir. 2008); Feliz
v. Kintock Group, 297 Fed. Appx. 131, 137 (3d Cir. 2008); and Anheuser-Busch, Inc. v. Philpot,
317 F.3d 1264, 1267 (11th Cir. 2003).
11

See Nelson v. Nationwide Mortg. Corp., 659 F. Supp. 611, 615-616 (D.D.C. 1987);
Vanguard Financial Service Crop. v. Johnson, 736 F. Supp. 832, 835 (N.D. Ill. 1990); Mercer v.
Csiky, No. 08-11443-BC, 2010 U.S. Dist. Lexis 64777, at *6 (E.D. Mich. Sept. 13, 2010) (and
cases cited therein).
3