Federal Deposit Insurance Corporation v. Cobalt Partners, LLC et al

Filing 42

ORDER granting in part and denying in part 36 Motion for Default Judgment. Signed by Judge B. Avant Edenfield on 10/16/2013. (loh)

I

U.S.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for FIRST
NATIONAL BANK,
Plaintiff,
4:13-cv-99

V.

COBALT PARTNERS, LLC; ALBERTO
ALVAREZ; ADAM BEELER; RODNEY
M. COOK, JR.; ALLEN C. HARPER;
WILLIAM M. TUTTLE, II; and
CHARLES K WERK,
Defendants.
ORDER
I. INTRODUCTION
Plaintiff Federal Deposit Insurance
Corporation ("FDIC") moves the Court for
entry of default judgment against two
defendants, Cobalt Partners, LLC ("Cobalt")
and Rodney M. Cook, Jr. ("Cook"). ECF
No. 36. In a subsequent reply brief, FDIC
amends its request to seek only a Clerk's
entry of default as to Cobalt and Cook. ECF
No. 41 at 5. The Court GRANTS the
motion as to Cobalt because it has failed to
plead or otherwise defend the lawsuit. The
Court DENIES the motion as it relates to
Cook because he has actively defended
himself in the litigation since his untimely
Answer.
A. Factual Background
On January 3, 2008, Cobalt executed a
promissory note to First National Bank in
the principal sum of $1,000,000. ECF No. 1

at 2. Each of
personally guail1 bait.'s debt. Id.
Defendants defaulted on he 9të and
guarantees lt making payments as
promised. Id. at
B. Procedural Background
The FDIC filed this lawsuit on April 19,
2013. See ECF No. 1. The Clerk issued
summonses to Cobalt and Cook on the same
day. ECF Nos. 2; 5. Cobalt was served on
May 15, 2013. ECF No. 15. Cook was
served on May 7, 2013. ECF No. 18.
To date, Cobalt has failed to plead or
otherwise defend against the lawsuit. ECF
No. 36 at 2.
Cook filed an untimely Answer on June
17, 2013. ECF No. 23. Cook also
participated in the Rule 26 conference, ECF
No. 31, and filed a timely reply to FDIC's
motion for entry of default judgment. ECF
No. 37.
II. ANALYSIS
Federal Rule of Civil Procedure 55(a)
provides that "[w]hen a party against whom
a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and
that failure is shown by affidavit or
otherwise, the clerk must enter the party's
default."
Cobalt has failed to file an Answer or
otherwise defend this case and so it is in
default.
Cook filed an untimely Answer, but he
did not fail to plead. See ECF No. 23.
Furthermore, Cook has otherwise defended
himself in this lawsuit by participating in the
Rule 26 conference and timely replying to

FDIC's motion for default judgment. ECF
Nos. 31; 37. Therefore, an entry of default
of Cook is inappropriate.
III. CONCLUSION
The Court GRANTS FDIC's motion for
entry of default as to Cobalt and ORDERS
the Clerk to enter Cobalt's default. The
Court DENIES FDIC's motion for entry of
default as to Cook.

This /ay of October 2013.

B. AVANT TEDENFIELD, JTJtiE
UNITED STATES DISTR1,T COURT
SOUTHERN DISTRICT OF GEORGIA

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