Danello v. Concord General Mutual Insurance Company et al

Filing 31

ORDER re: 30 Entry of Default. The clerk shall reopen the case, so that defendants may litigate, in this action, any counterclaims or cross-claims that may be properly asserted in this action, pursuant to Fed. R. Civ. P. 13. So Ordered by Magistrate Judge Landya B. McCafferty.(kad)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Michael A. Danello
v.

Civil No. 11-cv-212-LM

Concord General Mutual
Insurance Co. et al.

O R D E R
In this action, filed by plaintiff, Michael Danello,
individually and in his capacity as executor of the estate of
Anita Danello, the court issued an order (doc. no. 30),
dismissing the claims asserted in the case without prejudice.
The court hereby clarifies the purpose and intended effect of
the order at issue (doc. no. 30).
Background
Mr. Danello filed this action in state court against
parties including an insurer, Concord General Mutual Insurance
Company (“Concord General”), to resolve insurance coverage
issues relating to a March 2010 fire that occurred in a house
where Mr. Danello was living at the time.

Mr. Danello named

additional parties as defendants, including the Secretary of the
United States Department of Housing and Urban Development
(“HUD”) and Financial Freedom Acquisition LLC (“FFA”), to

resolve any claims that they might have as to the insurance
proceeds, given that the property had been the subject of a
foreclosure sale in March 2010.

HUD removed the action to this

court in May 2011.
Defendants FFA and HUD answered the petition and filed
cross-claims and counterclaims.

FFA asserted cross- or

counterclaims against all parties, seeking a judicial
declaration that “to the extent this court finds pursuant to the
Verified Petition, that [the insurance] policy was triggered,
then it should also find that the policy must be paid, in whole
or in part, to FFA as mortgagee for the benefit of FannieMae
and/or the Federal Housing Administration (FHA).”

HUD responded

to FFA’s cross-claim and asserted cross-claims against Concord
General.

Concord General has denied liability on all claims and

cross-claims asserted in this action.

Mr. Danello has not filed

a response to the counterclaim asserted against him by FFA.
At the time plaintiff filed this action, he was represented
by counsel, Attorney Bertrand Zalinsky.

The court granted

Attorney Zalinsky’s motion to withdraw as counsel on July 27,
2011, and instructed plaintiff at that time to file an
appearance by August 18, 2011.

In a subsequent order (doc. no.

29), the court specifically directed Mr. Danello, in his

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capacity as executor of the estate, to file an appearance of
counsel by September 13, 2011.

When Mr. Danello failed to file

any appearance thereafter, pro se or otherwise, and also failed
to file any response to FFA’s counterclaim, the court issued an
order dismissing the claims in the case, which the clerk
docketed as an entry of default (doc. no. 30).

When the clerk

docketed the entry of default, the docket entry indicated that
the case was closed.
The reason for issuance of that order was plaintiff’s
failure to file any appearance, pro se or through counsel, after
the court granted Attorney Zalinsky’s motion to withdraw.

See

Order (doc. no. 28) (granting counsel’s motion to withdraw (doc.
no. 27)).

The reason for the clerk’s entry of a default was Mr.

Danello’s failure to file any response to FFA’s counterclaim,
which was due on August 25, 2011.

See Endorsed Order (July 27,

2011) (granting motion to extend time to answer (doc. no. 26)).
Therefore, while the order at issue (doc. no. 30) dismissed
without prejudice Mr. Danello’s claims and had the unintended
effect of closing the case, the order was not intended to
preclude defendants from litigating, in this case, any
counterclaims or cross-claims that may be properly asserted
here, pursuant to Fed. R. Civ. P. 13.

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Conclusion
For the foregoing reasons, the clerk shall reopen the case,
so that defendants may litigate, in this action, any
counterclaims or cross-claims that may be properly asserted in
this action, pursuant to Fed. R. Civ. P. 13.

The clerk’s office

is directed to provide notice of this order to all counsel of
record, and to provide a copy to Michael Danello by providing
notice thereof to Attorney Zalinsky and by mailing a copy to Mr.
Danello at the following address:
Milford, MA

28 South Bow St., Apt. 3,

01757.

SO ORDERED.

__________________________
Landya B. McCafferty
United States Magistrate Judge
September 22, 2011
cc:

Michael A. Danello
Gordon A. Rehnborg, Jr., Esq.
Michael T. McCormack, Esq.
Andrew R. Schulman, Esq.
Bertrand Zalinsky, Esq.

LBM:nmd

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