BELL v. ROYAL CORNICHE TRAVEL LTD. et al

Filing 224

ENTRY OF DEFAULT AGAINST DEFENDANT TRUSTEE WILLIAM MCLAWS - Mr. McLaws failed to participate in this litigation after filing his Answer, and he failed to respond to the Court's Show Cause Order, an entry of Default is entered against him. Purs uant to Federal Rule Civ. P. 55 (a) and (b) Plaintiff, Richard N. Bell, shall submit an affidavit of the facts and evidence of damages against Mr. McLaws by February 6, 2015. Mr. McLaws shall have until February 16, 2015 to file a response, if any. Copy Mailed. Signed by Judge Tanya Walton Pratt on 1/21/2015.(MGG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICHARD N. BELL,
Plaintiff,
vs.
TRUSTEE WILLIAM MCLAWS, and
CHARLES LANTZ,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 1:13-cv-00035-TWP-DKL

ENTRY OF DEFAULT AGAINST
DEFENDANT TRUSTEE WILLIAM MCLAWS
This matter is before the Court on Defendant Trustee William McLaws’s (“Mr. McLaws”)
failure to show cause. Plaintiff Richard N. Bell (“Mr. Bell”) filed his Complaint on January 8,
2013, asserting claims of copyright infringement and state law conversion against numerous
defendants, including Mr. McLaws (Filing No. 1). Mr. McLaws filed an Answer to the Complaint
on March 26, 2013 (Filing No. 124). Since filing his Answer, Mr. McLaws has failed to participate
in this action and failed to respond to the Court’s Show Cause Order. Because of his failure to
participate in court conferences, to participate in this litigation, and to respond to the Court’s Show
Cause Order, default is entered against Mr. McLaws.
I. Background
On January 8, 2013, Mr. Bell filed his Complaint against Mr. McLaws, who resides in
Vancouver, British Columbia, Canada. On March 26, 2013, Mr. McLaws filed an Answer to the
Complaint. In his Answer, Mr. McLaws admitted that “each defendant had published the
‘Indianapolis photo’ on a website they created even though no defendant had the rights or authority

to publish same.” (Filing No. 124 at 1.) After filing his Answer, Mr. McLaws has not participated
in this litigation.
The parties1 were ordered to confer and prepare a proposed case management plan before
the initial pre-trial conference (Filing No. 167). Mr. McLaws failed to participate in the preparation
and submission of the proposed case management plan, which was tendered to the Court on July
14, 2014, by Mr. Bell and Defendant Charles Lantz (“Mr. Lantz”) (Filing No. 168).
In its Order setting the initial pre-trial conference, the Court encouraged the parties to
confer and prepare a proposed protective order if they anticipated a need for a protective order
(Filing 167 at 3). Mr. Bell and Mr. Lantz prepared a proposed protective order, which they tendered
to the Court on September 2, 2014 (Filing No. 178), but Mr. McLaws did not participate in the
preparation and submission of the proposed protective order.
On July 21, 2014, the Court held an initial pre-trial conference to discuss various matters
in this case. Mr. McLaws did not appear for the initial pre-trial conference. The Court previously
had provided Mr. McLaws with the option to participate telephonically in the initial pre-trial
conference, but he failed to participate even telephonically.
Because of his failure to participate in the required court conference, the Court issued a
Show Cause Order on August 7, 2014 (Filing No. 172). The Show Cause Order required Mr.
McLaws to respond in writing within twenty-one days, explaining why he should not be sanctioned
for failing to appear at the initial pre-trial conference. The Order noted that Mr. McLaws could be
subject to default for failing to participate in the action. Mr. McLaws did not respond to the Show
Cause Order.

1

Mr. Bell filed his Complaint against numerous defendants. The other defendants previously had settled, were
dismissed, or were defaulted when the Court issued its Order on July 10, 2014, setting the initial pre-trial conference
and requiring a proposed case management plan. Thus, the only remaining parties were the Plaintiff, Mr. Bell, and
two defendants, Mr. McLaws and Mr. Lantz.

2

On September 25, 2014, the Court held a telephonic status conference with the parties.
Again, Mr. McLaws failed to participate in the conference. After Mr. McLaws’s second failure to
appear at a court conference and his failure to respond to the Show Cause Order, Magistrate Judge
LaRue recommended that default be entered against Mr. McLaws (Filing No. 209).
II. Default Judgment as a Sanction
Federal Rule of Civil Procedure 16(f)(1) states:
On motion or on its own, the court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial conference;
(B) is substantially unprepared to participate—or does not participate in good
faith—in the conference; or
(C) fails to obey a scheduling or other pretrial order.
The Rule 37(b) sanctions available to the Court under Rule 16(f)(1) include “rendering a default
judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A)(vi). “Courts are given ‘wide
latitude in fashioning appropriate sanctions,’ but the sanctions must be reasonable under the
circumstances.” TruFoods, LLC v. Rigdon, 2012 U.S. Dist. LEXIS 26014, at *4 (S.D. Ind. Feb. 2,
2012) (quoting e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 642 (7th Cir. 2011)).
On March 26, 2013, Mr. McLaws filed his Answer, wherein he admitted that “each
defendant had published the ‘Indianapolis photo’ on a website they created even though no
defendant had the rights or authority to publish same.” (Filing No. 124 at 1.) Throughout the almost
two years of litigation since filing his Answer, Mr. McLaws has not participated in this litigation.
Mr. McLaws failed to obey the Court’s pre-trial order when he did not participate in
preparing and submitting the proposed case management plan. He failed to participate in preparing
and submitting the proposed protective order. He failed to appear at the initial pre-trial conference.
Mr. McLaws failed to obey the Court’s pre-trial Show Cause Order when he did not respond to
explain why he should not be sanctioned for failing to appear at the initial pre-trial conference. A
3

second time, Mr. McLaws failed to appear at a telephonic status conference with the Court. Mr.
McLaws abandoned the defense of this case after filing his Answer almost two years ago. Under
these circumstances, the Court finds that entering default against Mr. McLaws is reasonable and
appropriate.
III. Conclusion
Because Mr. McLaws failed to participate in this litigation after filing his Answer, and he
failed to respond to the Court’s Show Cause Order, an entry of Default is entered against him.
Pursuant to Federal Rule Civ. P. 55 (a) and (b) Plaintiff, Richard N. Bell, shall submit an
affidavit of the facts and evidence of damages against Mr. McLaws by February 6, 2015. Mr.
McLaws shall have until February 16, 2015 to file a response, if any.

SO ORDERED.
Date: 1/21/2015

Distribution:
William McLaws
701 - 1937 Pendrell St.
Vancouver, BC V6G 1T4
Richard N. Bell
BELL LAW FIRM
[e-mail]
Paul B. Overhauser
OVERHAUSER LAW OFFICES, LLC
[e-mail]

4