Ellerbee v. Coachworks Holdings Inc et al

Filing 22

ORDER denying as moot 6 Motion to Prevent Entry of Default; denying as moot 6 Motion for Leave to File; denying as moot 6 Motion to Set Aside Default. Ordered by Judge Hugh Lawson on 1/14/2010. (nbp)

IN THE UNITED STATESS DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA M AC O N DIVISION B A R R Y ELLERBEE, : : P la in tiff, : : v. : : D T CARSON ENTERPRISES, INC., : a foreign corporation transacting : b u s in e s s in Georgia, : C O A C H W O R K S HOLDINGS, INC., : a Georgia corporation, : D A L E CARSON, individually, and : T E R R I CARSON, individually, : : D e fe n d a n ts . : ORDER T h is matter is before the Court on the Motion to Prevent Entry of D e fa u lt and Conditionally for Permission to File Untimely Answer or in the A lte rn a tiv e to Set Aside Entry of Default (Doc. 6) (the "Motion") filed by D e fe n d a n ts DT Carson Enterprises, Inc., Dale Carson and Terri Carson.1 F o r the following reasons, the Motion is denied as moot. T h e Plaintiff in this case filed his Complaint on April 28, 2009. The P la in tiff alleged that he had perfected service on the Defendants on May 1 1 , 2009. On June 8, the Plaintiff filed a Motion for Default Judgment (Doc.

C a s e No. 5:09-cv-159 (HL)

An involuntary bankruptcy petition was filed against the fourth Defendant, Coachworks Holdings, Inc., on April 7, 2009. Therefore, all proceedings against Coachworks Holdings were stayed by the automatic stay of the Bankruptcy Code. See 11 U.S.C. § 362(a).
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3) against the Defendants. The Defendants allege they learned of the d e fa u lt judgment motion on June 10. The Defendants contacted the clerk o f this Court to request additional time to respond to the default judgment m o tio n , which the clerk granted. On June 12, the Defendants filed this M o tio n , in which they raised various issues and challenged the legitimacy o f the service and summons. On July 6, the Plaintiff filed his Response to D e fe n d a n t's Motion to Prevent Entry of Default & W ith d ra w a l of Motion for E n try of Default Judgment (Doc. 8) (the "W ith d ra w a l") wherein the Plaintiff a c k n o w le d g e d that he had failed to obtain summons and serve it with the c o m p la in t. The Plaintiff moved to withdraw the default judgment motion a n d sent the Defendants waivers of summons and complaint pursuant to F e d e ra l Rule of Civil Procedure 4(d). The Defendants executed and filed th e waivers (Docs. 9 and 10), and filed their Answer (Doc. 11) on August 2 5 , 2009.2 B e c a u s e of the foregoing, the issues raised in the Motion are moot. Therefore, the Motion (Doc. 6) is denied.

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On October 30, 2009, the Plaintiff filed a Notice of Relief from Automatic Stay (Doc. 16), wherein the Plaintiff notified the Court that the bankruptcy court entered an order on October 16 granting stay relief to allow the Plaintiff to proceed with his claims in this Court. On October 30, the Plaintiff filed a Waiver of Service (Doc. 15) signed by Coachworks Holdings, and on December 21, Coachworks Holdings filed a Motion to Dismiss the Complaint (Doc. 17) in lieu of an answer.

SO ORDERED, this the14th day of January, 2010. s / Hugh Lawson HUGH LAW S O N , Senior Judge jc h