WINGATE INNS INTERNATIONAL, INC. v. SWINDALL

Filing 43

ORDER denying 41 Motion for Default Judgment, without prejudice. Signed by Magistrate Judge Mark Falk on 12/27/2013. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 12-248 (CCC)
WINGATE INTERNATIONAL, INC.,
Plaintiff,
v.
ORDER

MARGARET SWINDALL,
Defendant.

THIS MATTER is before the Court upon the motion of Plaintiff for the entry of
default and default judgment. [CM/ECF No. 41.] The motion is denied without
prejudice.
Plaintiff commenced this action on January 1, 2012. [CM/ECF No. 1.] The matter
arises out of a October 1999 franchise agreement between Plaintiff and Defendant
Margaret Swindall, a Georgia resident, regarding the operation of a Wingate guest
lodging facility in Florida. Plaintiff claims that Ms. Swindall transferred the facility
without its consent in violation of the franchise agreement and seeks outstanding royalties
and other fees.
On February 23, 2012, Ms. Swindall, through counsel Mitchell J. Kassoff, Esq.,
answered the Complaint and asserted counterclaims. [CM/ECF No. 7.] Plaintiff moved
to dismiss a number of counterclaims, which was granted without prejudice to the right to
replead. [CM/ECF No. 11.] Thereafter, Defendant filed amended counterclaims, which
were answered, and the pleadings closed on December 3, 2012.
On June 12, 2013, Mr. Kassoff moved to withdraw as Ms. Swindall’s counsel.
[CM/ECF No. 36.] On September 16, 2013, case management responsibilities for this
matter were reassigned to the Undersigned Magistrate Judge. On September 19, 2013,
the Undersigned granted Mr. Kassoff’s motion to withdraw. [CM/ECF No. 39.] In the
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Order granting the motion, Ms. Swindall was directed to retain substitute counsel or enter
an appearance pro se by October 18, 2013. Ms. Swindall did not take any action as
directed by the Order. On October 22, 2013, the Undersigned, noting that Ms. Swindall
had not filed an appearance, directed Plaintiff to file an “application for appropriate
relief.” [CM/ECF No. 40.]
On November 1, 2013, Plaintiff filed the present motion for default and default
judgment. On November 18, 2013, Ms. Swindall submitted a letter opposing the default
judgment. [CM/ECF No. 42.] No mention is made in the letter as to whether Ms.
Swindall has, or is, attempting to retain counsel, nor does it state whether she wishes to
proceed pro se.
The motion for default and default judgment is denied without prejudice. Ms.
Swindall’s letter suggests she may wish to defend the case and proceed with her
counterclaims. Given the leniency routinely afforded to pro se litigants, the Court
believes that it is fair and efficient to provide Ms. Swindall with one final opportunity to
elect to proceed pro se and/or retain counsel. The Third Circuit has a strong preference
that matters be resolved on the merits whenever possible, e.g., Emasco Ins. Co. v.
Sambrick, 834 F.2d 71, 74 (3d Cir. 1987), and the Court is satisfied that providing Ms.
Swindall with one final opportunity to proceed will not prejudice Plaintiff in this case.
In addition, Plaintiff’s motion requests relief that is premature under the
circumstances. Before a default and default judgment can be entered, Defendant’s
pleadings must be stricken pursuant to Rule 37 and after consideration of the multi-factor
test called for by the Third Circuit in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863
(3d Cir. 1984). The motion does not address this issue.
Based on the above, Ms. Swindall is directed that by January 27, 2014, she should
either: (1) enter an appearance pro se with the Clerk of the Court, meaning that she
intends to represent herself in this case; or (2) have counsel enter an appearance on her
behalf. Ms. Swindall is cautioned that if she intends to proceed pro se that she will have
to abide by the Federal Rules of Civil Procedure and the Local Civil Rules just as any
other litigant. See, e.g., Sykes v. Blockbuster Video, 205 Fed. Appx. 961, 963 (3d. Cir.
2006). These obligations may include, if appropriate, travel to New Jersey.
If Ms. Swindall (or counsel) does not enter an appearance by January 27, 2014,
Plaintiff may file a motion requesting that her answer and counterclaims and be dismissed

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with prejudice pursuant to Rule 37 and the Poulis case referenced above, and that default
be entered.1
Because of the procedural history stated herein, all parties are advised that no
further extensions of deadlines will be permitted.
Plaintiff is directed to serve Ms. Swindall with a copy of this Order by overnight
mail within one business date from the date of this Order.

s/Mark Falk
MARK FALK
United States Magistrate Judge

DATED: December 27, 2013

1

Default and default judgment is generally a two-step process. See Strenkoski v.
Apex Chem., Inc., No. 13-2201, 2013 WL 6662539, at *1-2 (D.N.J. Dec. 17, 2013). If
default is entered, then Plaintiff may move for the entry of default judgment. See id.
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