J & J Sports Productions, Inc. v. Abreu et al

Filing 10

ORDER denying 8 Motion for Entry of Default; granting 9 Motion for review. The time for filing an answer or other responsive pleading in this matter is hereby extended to fourteen (14) days from the date of entry of this order. Defendants are notified that while individual "parties may plead and conduct their own cases personally," 28 U.S.C. § 1654, business entities may not appear in this Court without representation by counsel. Plaintiff is given leave to re-file its motion for entry of default should defendants fail to properly appear and responsively plead or defend in the time allowed. Signed by US District Judge Terrence W. Boyle on 2/15/2013. Copy sent to defendant via US Mail. (Edwards, S.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-243-BO

)
)
)
v.
)
)
OSVALDO LUIS ABREU, individually and)
d/b/a PASSION NIGHTCLUB; and
)
PASSION NIGHTCLUB, INC., a business )
entity d/b/a PASSION NIGHTCLUB,
)
Defendants.
)

J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,

ORDER

This cause comes before the Court on plaintiff's motion for entry of default. Rule 55(a) of
the Federal Rule of Civil Procedure provides that when a party against whom affirmative relief is
sought has failed to plead or otherwise defend within the time allowed, and the failure is shown by
affidavit, the clerk of court must enter default against the party.
A review of the record in this matter reveals that defendants have failed to properly appear
in this action and plead or otherwise defend. However, after plaintiff moved for entry of default,
defendants filed pro se a motion for review [DE 9], attaching to it a copy of correspondence
electronically mailed to plaintiff on August 21, 2012. The correspondence states that defendant
Abreu "would like to respond to your complaint civil action No. 5:12cv243-BO." [DE 9-1]. In
light of defendants' prose status, the Court construes the motion for review liberally and
interprets it as a motion to set aside entry of default pursuant to Rule 55(c). Erickson v. Pardus,
551 U.S. 89,94 (2007) ("[a] document filed prose is to be liberally construed") (quotation
omitted); Fed. R. Civ. P. 55(c). Entry of default may be set aside for good cause shown, and a

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court should consider factors such as whether the party has a meritorious defense, whether the
party has acted with reasonable promptness, and the availability of less drastic sanctions when
deciding whether to set aside the entry of default. Payne ex rei. Estate of Calzada v. Brake, 439
F .3d 198, 204-05 (4th Cir. 2006).
Although it is unclear from defendants' filing whether a meritorious defense exists,
defendants' response to plaintiffs complaint, though not filed with the Court, was e-mailed to
plaintiff within the time for filing an answer or other responsive pleading. In light of defendants'

pro se status, their attempt to plead or otherwise defend in this matter, and the lack of any
evidence of a history of dilatory action, the Court finds that a less drastic sanction than entry of
default is appropriate. Accordingly, because the Court in its discretion would set aside default in
this matter, it declines to enter formal default. Brown v. Weschler, 135 F. Supp. 622, 624 (D.D.C.
1955).
CONCLUSION
In light of the foregoing, plaintiffs motion for entry of default [DE 8] is DENIED
WITHOUT PREJUDICE and defendants' motion for review [DE 9] is GRANTED. The time for
filing an answer or other responsive pleading in this matter is hereby extended to fourteen (14)
days from the date of entry of this order. Defendants are notified that while individual "parties
may plead and conduct their own cases personally," 28 U.S.C. § 1654, business entities may not
appear in this Court without representation by counsel. Rowland v. Cal. Men 's Colony, Unit II

Men's Advisory Counsel, 506 U.S. 194,202 (1993); see also RZS Holdings AVVv. PDVSA
Petroleo S.A., 506 F.3d 350, 354 n.3 (4th Cir. 2007). Plaintiff is given leave tore-file its motion
for entry of default should defendants fail to properly appear and responsively plead or defend in
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the time allowed.

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so ORDERED, this/£ day of February, 2013.

UNITED STATES DISTRICT JUDGE

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