PGT Industries, Inc. v. Harris & Pritchard Contracting Services LLC et al

Filing 40

ORDER: Plaintiff PGT Industries, Inc.'s Motion to Strike Defendant Harris & Pritchard Contracting Services, LLC's Answer and Affirmative Defenses 38 is GRANTED. Defendant Harris & Pritchard Contracting Services, LLC's Answer and Aff irmative Pleadings 5 is hereby STRICKEN. Plaintiff PGT Industries, Inc.'s construed Motion for Entry of Default Judgment 38 is GRANTED as against Defendant Harris & Pritchard Contracting Services, LLC. The Clerk is DIRECTED to enter default against Defendant Harris & Pritchard Contracting Services, LLC. Plaintiff shall file a motion for default judgment after default is entered by the Clerk against Defendant Harris & Pritchard. Signed by Judge Virginia M. Hernandez Covington on 3/15/2013. (LRM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PGT INDUSTRIES, INC.
Plaintiff,
v.

Case No. 8:12-cv-358-T-33TGW

HARRIS & PRITCHARD CONTRACTING
SERVICES, LLC and DAVID M. HARRIS,
Defendants.
____________________________________/
ORDER
This

cause

comes

before

the

Court

pursuant

to

Plaintiff PGT Industries, Inc.’s Motion to Strike Defendant
Harris & Pritchard Contracting Services, LLC’s Answer and
Affirmative

Defenses

Judgment

to

as

and

Defendant

Motion
Harris

for
&

Entry

Pritchard

of

Default

Contracting

Services, LLC. (Doc. # 38). Because Harris & Pritchard’s
pleadings have not yet been stricken, and because the Clerk
has not yet entered default as to Harris & Pritchard, this
Court construes the Motion for Entry of Default Judgment as
a motion for entry of a Clerk’s default. For the reasons
that follow, the Court grants PGT’s motion as construed.
I.

Background
According to PGT, Harris & Pritchard executed a credit

application and Domestic Terms and Conditions of Sale with

PGT. (Doc. # 2 at 1, 6). PGT also states that Harris signed
a personal guaranty, and, therefore, he is responsible to
PGT for payment of all amounts owed to PGT by Harris &
Pritchard. (Id. at 4, 11). Although “Harris & Pritchard
Contracting
agreement

Services

above

both

LLC”

is

written

on

the

the

line

labeled

“Company

guaranty
Name

or

Account Name” and the line labeled “Name of Guarantor,”
Harris also signed his name at the end of the Personal
Guaranty

Agreement

on

the

line

labeled

“Guarantor”

and

provided his social security number in the space provided
for it. (Id.). PGT claims that it sold window and tile
products to Harris & Pritchard in accordance with the terms
of the agreement. (Id. at 2, 10).
PGT states that Harris & Pritchard made no objection
or complaint with respect to the products sold to them and
that, although Harris & Pritchard has made partial payments
to

PGT,

it

still

owes

PGT

$107,374.53

principal

plus

statutory interest. (Id. at 2). Additionally, PGT alleges
that “[p]ursuant to the Domestic Terms and Conditions of
Sale,

Harris

&

Pritchard

is

responsible

for

payment

of

[PGT’s] attorney’s fees and costs.” (Id.).
PGT originally filed this action in state court, and
Harris & Pritchard

and Harris removed the
2

case to

this

Court on February 21, 2012. (Doc. # 1). PGT’s three count
complaint alleges one count of breach of written contract
and

one

count

Pritchard,

as

of

unjust
as

well

against

Harris

Harris

&

in

enrichment
count

one

his

Pritchard

individual

filed

its

of

against
breach

capacity.
answer

and

Harris

of

&

guaranty

(Doc.

#

2).

affirmative

defenses on March 6, 2012. (Doc. # 5).
On

November

27,

2012,

counsel

for

both

Harris

&

Pritchard and Harris filed a Motion to Withdraw as counsel.
(Doc. # 30). The Court granted the motion on December 14,
2012, and notified Harris & Pritchard that it had thirty
days to file notice of appearance of new counsel. (Doc. #
34). No such notice was filed. On January 22, 2013, this
Court entered an Order noting Harris & Pritchard’s failure
to comply with the Court’s direction and stating, “Absent a
notice of appearance of counsel filed on behalf of Harris &
Pritchard by February 6, 2013, this Court will entertain an
appropriate

motion

to

strike

Harris

&

Pritchard's

pleadings. Thereafter, Harris & Pritchard will be poised
for the entry of default against it.” (Doc. # 36). As of
the date of this Order, Harris & Pritchard has not filed a
notice of appearance of new counsel. PGT filed a motion to

3

strike Harris & Pritchard’s answer and to enter default
judgment on February 19, 2013. (Doc. # 38).
II.

Legal Standard
Federal Rule of Civil Procedure 55(a) sets forth the

following regarding an entry of default:
(a) Entering a Default.
When a party against
whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that
failing is shown by affidavit or otherwise, the
clerk must enter the party’s default.
A district court may also strike pleadings and direct
the Clerk to enter default against defendants who have made
an appearance as a sanction for discovery abuses or the
abandonment of defenses. Fed. R. Civ. P. 37(b)(2)(A)(vi);
Pickett v. Executive Preference Corp., No. 6:05-cv-1128,
2006

WL

2947844

defendant's

(M.D.

pleadings

Fla.

for

Oct.

16,

abandoning

2006)

its

(striking

defense,

and

directing clerk to enter default against defendant).
Pursuant to Federal Rule of Civil Procedure 55(b)(2),
following the entry of a Clerk’s default and upon motion by
the

plaintiff,

the

Court

may

enter

a

default

judgment

against a defaulting party.
III. Analysis
As

stated

above,

a

district

court

may

strike

a

defendant’s pleadings as a sanction for the abandonment of
4

defenses.

The

Court’s

January

22,

2013,

Order

notified

Harris & Pritchard that the Court would take such action if
notice of new counsel was not timely filed:
Defendant
Harris
&
Pritchard
Contracting
Services, LLC has until and including February 6,
2013, to retain new counsel. In the event that
new counsel is retained, Harris & Pritchard is
directed to file a response to the motion for
summary judgment on or before February 20, 2013.
Absent a notice of appearance of counsel filed on
behalf of Harris & Pritchard by February 6, 2013,
this Court will entertain an appropriate motion
to
strike
Harris
&
Pritchard's
pleadings.
Thereafter, Harris & Pritchard will be poised for
the entry of default against it.
(Doc. # 36 at 5-6). Accordingly, the Court strikes Harris &
Pritchard’s

Answer

and

Affirmative

Defenses

(Doc.

#

5),

filed on March 6, 2012.
Furthermore,

Local

Rule

2.03(e)

states

that

corporations may only appear and be heard through counsel.
Despite

the

Court’s

directions

and

warning,

Harris

&

Pritchard has failed to file an appearance of new counsel.
A district court may default a defendant pursuant to Rule
55(a) for failure to follow the Local Rules. See, e.g.,
Compania Interamericana Export, Import, S.A., v. Compania
Dominicana de Aviacion, 88 F.3d 948 (11th Cir. 1996). As
such, entry of default is a proper sanction for a defendant
corporation’s failure to obtain counsel.
5

See e.g. Kaplun

v. Lipton, No. 06-20327-CIV, 2007 WL 707383 (S.D. Fla. Mar.
5,

2007)

(entering

default

judgment

against

corporate

defendant for failure to obtain counsel per court order);
Tumi v. Wally’s Waterfront, Inc., No. 2:05-cv-551, 2007 WL
678013 (M.D. Fla. Mar. 5, 2007) (finding entry of default
judgment appropriate after corporate defendant failed to
obtain counsel as directed by court).
In Interamericana Export, the Eleventh Circuit upheld
a district court’s decision to default a corporation for
failure

to

court’s

obtain

primary

counsel.
reason

Id.

for

at

951-52.

entering

a

The

district

default

was

Dominicana’s failure to retain new counsel after the court
allowed withdrawal of its former counsel.
upholding

the

entry

of

default,

even

Id. at 950. In
when

Dominicana

obtained counsel after the deadline passed, the Eleventh
Circuit

reasoned

specifically
upholding

that,

considered

defaults,

“if

although
culpability
a

party

some
or

courts

had

willfulness

willfully

defaults

in
by

displaying either an intentional or reckless disregard for
the

judicial

findings

in

proceedings,
denying

the

relief.”

omitted).

6

court
Id.

need

make

(internal

no

other

citations

PGT has moved for entry of default judgment. (Doc. #
38). However, as the Clerk has not yet entered default in
this case, the Court will construe the Motion for Entry of
Default

Judgment

as

default.

PGT

judgment

pursuant

55(b)(2)

after

a

file

shall

motion
a

to

for

the

Clerk’s

motion

for

entry

Federal

default

is

Rule

entered

of
by

entry

of

Civil

the

of

default

Procedure

Clerk

against

Harris & Pritchard.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

PGT

Industries,

Defendant

Harris

&

Inc.’s

Pritchard

Motion

to

Contracting

Strike

Services,

LLC’s Answer and Affirmative Defenses (Doc. # 38) is
GRANTED.
(2)

Defendant

Harris

&

Pritchard

Contracting

Services,

LLC’s Answer and Affirmative Pleadings (Doc. # 5) is
hereby STRICKEN.
(3) Plaintiff PGT Industries, Inc.’s construed Motion for
Entry of Default Judgment (Doc. # 38) is GRANTED as
against

Defendant

Harris

&

Pritchard

Contracting

Services, LLC.
(4)

The

Clerk

Defendant

is

DIRECTED

Harris

&

to

Pritchard
7

enter

default

Contracting

against
Services,

LLC.

Plaintiff

shall

file

a

motion

for

default

judgment after default is entered by the Clerk against
Defendant Harris & Pritchard.
DONE and ORDERED in Chambers, in Tampa, Florida, this
15th day of March, 2013.

Copies: All Counsel and Parties of Record

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