Innovative Sports Management, Inc. v. 3508 Eastern, LLC et al

Filing 13

MEMORANDUM AND ORDER granting 9 Motion to Vacate Order of Default; and vacating 8 Order of Default. Signed by Judge Marvin J. Garbis on 8/14/12. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
INNOVATIVE SPORTS
MANAGEMENT, INC.

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Plaintiff
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vs.

CIVIL ACTION NO. MJG-11-3268
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3508 EASTERN LLC, et al.
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Defendants
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MEMORANDUM AND ORDER
The Court has before it Defendants' Motion to Vacate Order
of Default [Document 9] and the materials submitted relating
thereto.

The Court finds that a hearing is unnecessary.

Defendants were properly served with the Complaint on
January 1.1

On February 15, a document was filed by "Ivan R.

Brown, Member, 3508 Eastern LLC" stating essentially that
Plaintiff's allegations were untrue, that "the establishment"
has an account with Direct TV and that all telecasts were done
with authority from Direct TV.

The document also stated that

the signatory

will be seeking an attorney and will

counterclaim.

[Document 6].

The said document was docketed as

an Answer on behalf of Defendant Ivan Brown.

While obviously

intended to be a response on behalf of Defendant 3508 Eastern,
LLC, it was ineffective because it was not signed by an attorney

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All date references are to the year 2012.

who was a member of the bar of this Court.
Plaintiff, taking no action vis-à-vis the individual
defendant, on June 11 filed a request for the Clerk to enter a
default judgment [Document 7].

On June 13, the Clerk, as a

matter of routine, entered the Order of Default [Document 8]
provided by Plaintiff.

Plaintiff did not file a motion seeking

a default judgment from the Court.

On June 28, Defendant 3508

Eastern, LLC filed the instant motion.
As stated by the United States Court of Appeals for the
Fourth Circuit in Payne v. Brake, 439 F.3d 198, 204-05 (4th Cir.
2006):
Rule 55 of the Federal Rules of Civil
Procedure provides that a court may, “[f]or
good cause shown,” set aside an entry of
default. “The disposition of motions made
under Rule [ ] 55(c) . . . is a matter which
lies largely within the discretion of the
trial judge and his action is not lightly to
be disturbed by an appellate court.”
When deciding whether to set aside an entry
of default, a district court should consider
whether the moving party has a meritorious
defense, whether it acts with reasonable
promptness, the personal responsibility of
the defaulting party, the prejudice to the
party, whether there is a history of
dilatory action, and the availability of
sanctions less drastic.

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Id. (citing Fed. R. Civ. P. 55(c); Consol. Masonry &
Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249, 251
(4th Cir. 1967)).
The Court finds that Defendant 3508 Eastern, LLC is
entitled to the opportunity to present its defenses.

The said

Defendant acted promptly, intended to file an answer but acted
upon a misunderstanding on behalf of its owner and there has
been absolutely no prejudice to the Plaintiff.
Furthermore, inasmuch as Plaintiff has done nothing
whatsoever to proceed on its claims against the individual
Defendant, there appears to be no good faith basis for Plaintiff
to have opposed the instant motion.

Indeed, the Court finds

Plaintiff's action perilously close to justifying an award of
sanctions against it.
Accordingly:
1.

Defendants' Motion to Vacate Order of Default
[Document 9] is GRANTED.

2.

The Order of Default [Document 8] is VACATED.

3.

Defendants may file a motion to dismiss the
complaint by August 31, 2012.

SO ORDERED, this Tuesday, August 14, 2012.

/s/__________
Marvin J. Garbis
United States District Judge
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