PARISE et al v. SUAREZ et al

Filing 16

MEMORANDUM OPINION AND ORDER denying Defendant Suarez's letter applications 11 15 ; ORDERED that Plaintiffs motion for default judgment shall be scheduled for a proof hearing on Tuesday, October 23, 2018 at 10:00 A.M. before Judge Simandle in Courtroom 4A, etc. Signed by Judge Jerome B. Simandle on 8/8/2018. (rtm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN PARISE, et al.,
Plaintiffs,
v.
ALEX E. SUAREZ,
FAMILY OFFICE PARTNERS, LLC,
FAMILY OFFICE PARTNERS, INC.,
THE MERCHANT BANKERS CLUB II, LLC,
PRIVATE MERCHANTBAKERS II, LLC,
MERCHANTBANQUIERS CLUB, INC.,
PRIVATE BORROWERS CLUB II, LLC,
JOHN DOE, AND ABC CORPORATION,
jointly, severally, and in the
alternative,

HONORABLE JEROME B. SIMANDLE

Civil Action No.
17-6936 (JBS-JS)

MEMORANDUM OPINION
AND ORDER

Defendants.
SIMANDLE, District Judge:
This matter is before the Court upon Plaintiffs’ Motion for
Default Judgment as to all defendants, filed May 25, 2018 [Docket
Item 12], and correspondence received from defendant Alex E.
Suarez, Pro Se, in opposition thereto dated June 14, 2018 [Docket
Item 13], a reply thereto by plaintiffs’ counsel Ronald DeSimone,
Esq., dated June 25, 2018 [Docket Item 14], and a reply thereto by
Mr. Suarez dated July 11, 2018 [Docket Item 15].
1.

Plaintiffs John Parise, Michael Parise, and Cooper Beech

Financial Group, LLC (“Plaintiffs”) filed the Complaint herein on
September 11, 2017, alleging that Defendants Alex E. Suarez;
Family Office Partners, Inc.; Family Office Partners, LLC; The
Merchant Bankers Club II, LLC; Private Merchantbankers II, LLC;

Merchantbanquiers Club, Inc.; and Private Borrowers Club II, LLC,
together with unidentified parties John Doe and ABC Corporation,
are liable for alleged Fraud at the Inducement of Contract (First
Count), Contractual Fraud (Second Count), Breach of Implied
Covenant of Good Faith and Fair Dealing Under Contract (Third
Count), and Conversion (Fourth Count).
2.

Damages are sought in excess of $75,000 and Plaintiffs

assert that this Court has diversity jurisdiction, 28 U.S.C. §
1332 as Plaintiffs are New Jersey citizens and Defendants are
citizens of states other than New Jersey, namely Georgia and/or
Delaware.

The Complaint also seeks equitable relief, including

“to dissolve the entity Family Office Partners, Inc., remove the
plaintiffs as officers and directors together with double damages,
reasonable attorney’s fees, costs of suit, removal of their names
from the CRD, registration with FINRA and/or SEC, Form Adv and any
other relief that the Court deems just and equitable.”

Complaint

¶ 40; see also ¶¶ 30, 34, and 38.
3.

All Defendants were served personally or by registered

agents on various dates:

Alex Suarez, Family Office Partners,

Inc., Family Office Partners, LLC, and The Merchant Bankers Club
II, LLC (all on September 26, 2017); Defendant Private Borrowers
Club II, LLC (on September 18, 2017); and Defendant
Merchantbanquiers Club, Inc. (on October 3, 2017).
of Service Executed (Docket Items 4, 5, and 6).]
2

[See Returns

4.

No party answered or otherwise pled to the Complaint,

and Plaintiffs’ Request to Enter Default [Docket Item 7] was
initially granted by the Clerk of court as to all Defendants on
November 21, 2017; however, the Hon. Joel Schneider, U.S.
Magistrate Judge, granted Defendant Suarez’s request for a brief
extension of time to respond to the pleadings on November 22, 2017
[Docket Item 9], extending Defendants’ deadline until December 22,
2017.

(Id.)

An attorney, Christian J. Jensen, Esq., filed a

letter with Judge Schneider on November 21, 2017 requesting an
extension for all corporate entities, which was granted, extending
the deadline to December 22, 2017.

Attorney Jensen was not heard

from again and has not entered an appearance.1
5.

When no response was forthcoming, Plaintiffs’ request

for entry of default against all Defendants was entered on
December 28, 2017 [Docket Item 10].
6.

Plaintiffs’ counsel filed the present motion for default

judgment as to all Defendants on May 25, 2018 [Docket Item 12],
sending copies of same to Mr. Suarez and to each defendant
corporate entity.
7.

(Certification of Service, Docket Item 12-16.)

Only Defendant Suarez has replied to this motion, in

letters filed June 25, 2018 [Docket Item 13] and July 18, 2018

1

Attorney, Jensen, by letter to Mr. DeSimone dated Jan. 3,
2018, refused to accept Plaintiffs’ request for entry of
default, claiming to not represent any defendant in the action.
[Docket Item 12-2.]
3

[Docket Item 15].

Mr. Suarez claims he has moved to a new address

-- 92 W. Paces Ferry Rd., NW, Unit 8009, Atlanta, GA 30305, and
that notice of this motion to him was late.

The Court will

consider Suarez’s tardy responses given his relocation to the new
address.

Mr. Suarez admits he was served with the Complaint and

that he has not answered the Complaint, believing incorrectly that
the parties were in settlement discussions due to an offer he made
to Plaintiff John Parise, apparently in 2017.

Mr. Suarez

purported to speak not only for himself but for Family Office
Partners, Inc. (See Suarez Letter filed June 27, 2018.)

Mr.

Suarez asserts that he would intend to file valid motions to
dismiss for lack of jurisdiction and to compel arbitration in
Georgia under a contractual arbitration clause; he asserts he has
been “named individually (frivolously) as one of the defendants”
and claims he has a “right to answer the complaint pro se and by
extension foreshadow what my corporate answer to the complaint
might be.”
8.

(Suarez Letter filed July 18, 2018.)
Plaintiffs, through Mr. DeSimone, responded to Mr.

Suarez pointing out that Suarez was in fact served with the
default judgment motion papers as of May 29, 2018.

Plaintiffs

correctly point out that Defendant Suarez and the other named
defendants were served with the Complaint long ago and have been
in default and lack standing to raise any substantive arguments in
opposition to the default judgment motion.
4

(Letter of Ronald

DeSimone, Esq., dated June 25, 2018, Docket Item 14.)

Mr.

DeSimone has also indicated that Mr. Suarez moved without
informing him of his new address (Id.)
9.

The Court finds that Mr. Suarez and the other named

defendants are all in default.

Mr. Suarez may represent himself

pro se, since he is individually named in the Complaint.

Mr.

Suarez may not represent the other Defendant entities which are in
corporate form including LLC’s and other corporations; such
entities may only appear in this court through an attorney who is
a member of the bar of this Court, in accordance with 28 U.S.C. §
1654 and Local Civil Rule 101.1(a) & (b).
10.

The Court will not consider Mr. Suarez’s defenses unless

and until his default is lifted and he files appropriate
pleadings.

He has, without just cause, ignored the duty to

respond to the Complaint, even after his time to do so was twice
extended.

He has been in default since December 22, 2017.

His

excuse, that he thought his answering deadline was suspended
indefinitely because he made some sort of settlement offer, is not
sufficient, especially where there is no record of attempted,
ongoing settlement negotiations.

The failure to retain counsel

for the entity defendants notwithstanding Attorney Jensen’s
expectation of being retained as disclosed in his letter to Judge
Schneider on November 21, 2017 [Docket Item 9], upon which Judge
Schneider relied in granting Attorney Jensen’s request for
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extension (see ¶ 4 and n.1, supra), further shows a decision by
these defendants to not take steps necessary to defend this suit.
11.

Furthermore, none of Mr. Suarez’s claims are made under

oath, nor are his defenses supported at this time by legal
citation and reasoning.

A party seeking relief from default under

Rule 55(c), Fed. R. Civ. P., must either obtain the plaintiff’s
consent or file a proper motion, upon due notice, and must address
the following:

(a) whether the defaulted defendant has acted in

good faith; (b) the timing of the defendant’s motion for relief;
(c) whether the defendant may have a meritorious defense; and (d)
whether the plaintiff would be unduly prejudiced by relieving the
defendant from default.

10A Wright, Miller & Kane, Federal

Practice and Procedure, § 2694 at 117 (1998 ed.) (summarizing
cases).
12.

Defendant Suarez’s letters fail these tests.
Since he is not an attorney, Mr. Suarez may be unaware

of these requirements.

He is encouraged to consult and/or retain

an attorney admitted to the bar of this Court.

He may, of course,

enter his own appearance and represent himself and comply with the
applicable rules for filing on our Electronic Case Filing system
and all other Local Civil Rules, published on this Court’s
website, www.njd.uscourts.gov.

On the other hand, as noted above,

the corporate entity defendants may only appear through an
attorney who is a member of this court’s bar, whose first task
would be to file a motion setting aside the default under Rule
6

55(c), Fed. R. Civ. P.

The Court will extend to Mr. Suarez the

opportunity to file his motion to set aside the default against
him within fourteen (14) days of the entry of this Memorandum
Opinion and Order.
13.

Meanwhile, the proof hearing upon Plaintiffs’ motion for

default judgment against all defendants who then remain in default
will be scheduled before the undersigned on October 23, 2018 at 10
A.M.

The motion for default judgment requires a proof hearing

because it seeks fraud-related damages and attorney’s fees and is
not a mere book-account contractual claim.
Civ. P.2

Rule 55(b)(2), Fed. R.

In addition to the Certification of Michael Parise

[Docket Item 14] and the various documents attached to the Brief
[Exs. A-C of Docket Item 12-2], the Court may need factual
testimony elucidating the role played by each corporate entity
giving rise to its alleged liability.

The Court also requests

that Plaintiffs address the issue of this Court’s jurisdiction and
venue, especially whether an arbitration clause in the parties’
agreement may require this dispute to be presented to a Georgia
arbitrator, as claimed by Mr. Suarez; the Court highlights this
question because it may be a jurisdictional issue, properly raised
by the Court sua sponte, see Rule 12(h)(3), Fed. R. Civ. P., and
because there may be an issue of proper venue under the parties’

2

If Plaintiffs elect to narrow their default judgment motion
to an award of compensatory damages, attorney’s fees and costs,
the default judgment proof hearing would be simplified.
7

venue-selection clause.

Plaintiffs’ supplemental submission

addressing jurisdiction and venue will be due on October 9, 2018,
which is two weeks before the hearing.
14.

Negotiations for Settlement.

The Court further requests

that the litigants (Mr. DeSimone and Mr. Suarez or his attorney if
represented, plus any attorney for the defendant corporate
entities) speak with one another personally in a good faith
attempt to resolve this matter without further litigation, within
the next four weeks.

Such discussions in pursuit of settlement

are confidential under Rule 408, Federal Rules of Evidence.

If

the litigants mutually agree that a judicial settlement conference
may be productive, they may request that the Honorable Joel
Schneider, U.S. Magistrate Judge, convene a settlement conference
at a mutually available time.
Accordingly, and for good cause shown;
IT IS this

8th

day of August, 2018 hereby

ORDERED that Defendant Suarez’s letter-applications to set
aside default [Docket Items 13 and 15] are DENIED; and it is
further
ORDERED that Plaintiffs’ motion for default judgment shall be
scheduled for a proof hearing on Tuesday, October 23, 2018 at
10:00 A.M. before the undersigned in Courtroom 4A; and it is
further

8

ORDERED that any motion by Defendant Alex E. Suarez or any
other Defendant for relief from default pursuant to Rule 55(c),
Fed. R. Civ. P., shall be filed with the Clerk of the Court and
served upon Plaintiffs’ counsel within fourteen (14) days of the
entry of this Memorandum Opinion and Order upon the docket; and it
is further
ORDERED that Defendant Suarez may retain New Jersey counsel
or represent himself personally and that the other named
Defendants may only appear through New Jersey counsel; and it is
further
ORDERED that Plaintiffs’ counsel and Mr. Suarez (or his
counsel plus any representative of the corporate entity
defendants) shall personally confer in an attempt to resolve these
matters amicably within the next four weeks; and it is further
ORDERED that the Clerk of Court mail a copy of this
Memorandum Opinion and Order to Defendant Alex E. Suarez at his
new address:

92 W. Paces Ferry Rd., NW, Unit 8009, Atlanta, GA

30305.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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