DUNCANSON v. WINE AND CANVAS IP HOLDINGS LLC et al

Filing 270

ORDER TO SHOW CAUSE - Plaintiff is ordered to show cause no later than January 31, 2020, why her claims against the Default Defendants should not be dismissed for lack of prosecution and/or to take some definitive step to advance the litigation of her claims towards final resolution. Plaintiffs Motion in Limine Dkt. 265 is denied. Signed by Judge Sarah Evans Barker on 1/16/2020. Copy Mailed.*** SEE ORDER ***(CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MEGAN AROON DUNCANSON,

)
)
Plaintiff,
)
)
v.
)
)
WINE AND CANVAS IP HOLDINGS LLC,
)
WINE AND CANVAS DEVELOPMENT, LLC, )
WNC OF CINCINNATI LLC,
)
WNC OF COLUMBUS LLC,
)
WNC OF DAYTON LLC Clerk's Entry of Default )
Entered 12/27/2017,
)
WNC OF DETROIT LLC Clerk's Entry of Default )
Entered 12/27/2017,
)
WNC OF DES MOINES LLC,
)
WNC OF FORT WAYNE LLC Clerk's Entry of
)
Default Entered 12/27/2017,
)
WNC OF LAS VEGAS LLC Clerk's Entry of
)
Default Entered 12/27/2017,
)
WNC OF NAPA SONOMA LLC Clerk's Entry of )
Default Entered 12/27/2017,
)
WNC OF ODESSA LLC,
)
WNC OF PORTLAND LLC,
)
WNC OF SOUTH BEND LLC,
)
WNC OF SAN FRANCISCO LLC,
)
TAMRA MCCRACKEN a/k/a Tamra Scott,
)
ANTHONY SCOTT,
)
)
Defendants.
)

No. 1:16-cv-00788-SEB-DML

ORDER TO SHOW CAUSE

On April 11, 2016, Plaintiff Megan Aroon Duncanson initiated this action against
various defendants, alleging violations of the United States Copyright Act, 17 U.S.C. §§
101, 502. On December 27, 2017, Plaintiff, in accordance with Federal Rule of Civil
Procedure 55, secured an entry of default against five defendants: WNC of Fort Wayne,
LLC; WNC of Dayton, LLC; WNC of Detroit, LLC; WNC of Las Vegas, LLC; and
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WNC of Napa Sonoma, LLC ( the “Default Defendants”). Plaintiff then moved for
summary judgment as to damages against the Default Defendants, [Dkt. 255], pursuant to
Federal Rule of Civil Procedure 56.
On September 30, 2019, we issued our Order denying Plaintiff’s Motion for
Summary Judgment, explaining therein:
Rule 55(b) contemplates that, once default is entered, a party must move for
default judgment when, as here, the plaintiff’s claim is not for an amount of
damages that can be easily computed or is otherwise certain[.]
Ms. Duncanson has not yet sought a default judgment, pursuant to Rule 55(b),
having moved for summary judgment instead as to damages. After exhaustive
research, we have located only one prior case in our Circuit where a party invoked
Rule 56 to determine damages, in lieu of proceeding under Rule 55(b), after an
entry of default establishing liability. Trustees of Teamsters Union Local No. 142
Pension Tr. Fund v. Actin, Inc., No. 2:07-CV-289-TS, 2009 WL 10721015, at *4
(N.D. Ind. July 27, 2009). In light of the two-step process contemplated in Rule 55
and given the posture of that case, the Teamsters court concluded that the better
vehicle for seeking damages following an entry of default is through an
application for default judgment, pursuant to Rule 55(b), not by a motion for
summary judgment on damages under Rule 56. Id. Unlike Rule 56, Rule 55
provides the court with several tools to conduct the necessary inquiries in pursuit
of its task of ascertaining reasonable damages . . . Accordingly, the Teamsters
court denied plaintiff’s motion for summary judgment and directed it to apply for
default judgment under Rule 55(b)(2).
We adopted the Teamsters court’s analysis and held that “Rule 55(b) provides the
proper vehicle for Ms. Duncanson to establish the damages, if any, to which she is
entitled against the Default Defendants.” [Dkt. 257].
To date, however, Plaintiff has not moved for default judgment under Rule 55(b).
Indeed, the parties have been somnolent for nearly a year according to the docket, with
the exception of Plaintiff’s Motion in Limine seeking to bar the Default Defendants from
presenting certain evidence at trial. However, as summary judgment was not the
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appropriate vehicle to assess any potential damages owed by the Default Defendants,
neither is a trial. Sharkey v. Cochran, No. 1:09-CV-0517-JMS-DKL, 2012 WL 967057,
at *12 (S.D. Ind. Mar. 21, 2012); Swoope v. Gary Cmty. Sch. Corp., No. 2:10-CV-423RL, 2011 WL 6826410, at *2 (N.D. Ind. Dec. 28, 2011); Meyers v. Lakeland Supply, Inc.,
133 F.Supp.2d 1118, 1118 (E.D. Wis. 2001). Plaintiff’s Motion in Limine is thus
inappropriate and, accordingly, is denied.
The ball now is now in Plaintiff’s court: she can bring her claims against the
Default Defendants to a close via a motion for default judgment. The Clerk’s entry of
default was entered in December 2017—more than two years ago. Plaintiff is thus
ordered to show cause, in writing, filed with this Court no later than January 31, 2020,
why the claims against the Default Defendants should not be dismissed for lack of
prosecution, pursuant to Federal Rule of Civil Procedure 41(a). We offer Plaintiff this
opportunity to inform the Court and/or to take action to prosecute her claims, though the
Court is empowered to act on its own to dismiss long-dormant claims. See James v.
McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005) (“A district court has the authority
. . . to enter a sua sponte order of dismissal for lack of prosecution. This authority ‘has
generally been considered an ‘inherent power,’ governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.’”) (quoting Link v. Wabash R. Co., 370 U.S.
626, 630-31 (1962)). See also GCIU Employer Retirement Fund v. Chicago Tribune Co.,
8 F.3d 1195, 1198-1199 (7th Cir. 1993) (“[A] party cannot decide for itself when it feels
like pressing its action and when it feels like taking a break because trial judges have a
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responsibility to litigants to keep their court calendars as current as humanly possible.”)
(internal citations omitted); Illinois Cent. Gulf R. Co. v. J & L Contractors, Inc., 121
F.R.D. 391, 394 (C.D. Ill. 1988) (discussing dismissal of complaint because of Plaintiff’s
failure to timely prosecute default judgment after entry of default).
Conclusion
Plaintiff is ordered to show cause no later than January 31, 2020, why her claims
against the Default Defendants should not be dismissed for lack of prosecution and/or to
take some definitive step to advance the litigation of her claims towards final resolution.
Plaintiff’s Motion in Limine [Dkt. 265] is denied.
IT IS SO ORDERED.
1/16/2020
Date: ___________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Cynthia Conlin
CYNTHIA CONLIN, P.A.
[e-mail]
P. Adam Davis
DAVIS & SARBINOFF LLC
[e-mail]
Tony Pagan, Jr.
CYNTHIA CONLIN & ASSOCIATES
1643 Hillcrest Street
Orlando, FL 32803
Antonio Pagan, Jr.
CYNTHIA CONLIN and ASSOCIATES
[e-mail]

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Jennifer Dawn Reed
CYNTHIA CONLIN and ASSOCIATES
[e-mail]

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