Synovus Bank v. Bokke IV, LLC et al

Filing 125

ORDER granting in part and denying in part 98 Motion to Strike and Motion for Entry of Default (see order for details); denying as moot 106 Motion for Sanctions; denying without prejudice 108 Motion to Compel and [11 7] Motion to Compel supplemented. This action is STAYED until further Order of the Court with respect to Defendant James Eley only. The parties shall file a stipulation of dismissal with respect to the settled claims within 30 days of the entry of this Order. Signed by District Judge Martin Reidinger on 10/01/2013. (Pro se litigant served by US Mail.)(thh)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11-cv-00071-MR-DLH

SYNOVUS BANK,

)
)
Plaintiff,
)
)
vs.
)
)
)
BOKKE IV L.L.C., JAMES ELEY,
)
LAURA KELLY, JOHN KELLY, SR.,
)
MARLON NIEMAND, MARK P.
)
KELLY, JOHN G. RECKENBEIL,
)
and SIMON MANNION,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion to Strike
and for Entry of Default against Defendants Bokke IV L.L.C., Simon
Mannion, James Eley, and Marlon Niemand [Doc. 98]; Plaintiff’s Motion for
Sanctions against Defendant Simon Mannion [Doc. 106]; and Plaintiff’s
Motion to Compel filed against Defendants Bokke IV L.L.C., James Eley,
Marlon Niemand, John G. Reckenbeil, and Simon Mannion [Doc. 108], as
supplemented [Doc. 117].

I.

PROCEDURAL BACKGROUND
On April 1, 2011, the Plaintiff Synovus Bank (“Bank”) initiated this

action against the Defendants Bokke IV L.L.C. (“Bokke IV”), James Eley
(“Eley”), Marlon Niemand (“Niemand”), Simon Mannion (“Mannion”), John
G. Reckenbeil (“Reckenbeil”), and Laura Kelly, John Kelly, Sr., and Mark P.
Kelly (collectively, “the Kelly Defendants”). [Doc. 1].
On June 1, 2011, all of the Defendants filed a joint Answer,
Counterclaim, and Third Party Complaint.

[Doc. 11].

After extensive

motions practice, on August 15, 2012, the Court granted certain motions to
dismiss in part and denied them in part. In particular, the Court dismissed
the Defendants’ Second Amended Third Party Claims against Synovus
Financial Corp.; dismissed all counterclaims by Eley, the Kelly Defendants,
Mannion, Niemand, and Reckenbeil against the Bank; and dismissed all
counterclaims by Bokke IV against the Bank, with the exception of a
counterclaim under ILSA which was allowed to proceed. [Doc. 69].
Thereafter, Defendants’ counsel made a series of motions seeking
permission to withdraw. Specifically, Defendants’ counsel were allowed to
withdraw from the representation of Defendant Reckenbeil [Doc. 78]; the
Kelly Defendants [Doc. 80], Mannion [Doc. 90]; and Bokke IV, Eley, and
Niemand [Doc. 93].

In these Orders, the Defendants were directed to
2

obtain new counsel or notify the Clerk in writing of their intention to proceed
pro se in this case within twenty (20) days from the entry of the Order. The
Defendants were advised further that their failure to comply with the Order
could result in the Court striking their Answers and entering default against
them.1 [Docs. 78, 80, 90, 93]. With respect to Defendant Bokke IV, the
Court instructed it that a limited liability company may not proceed pro se
and that it must obtain new counsel within twenty (20) days of the entry of
the Order. Bokke IV was further admonished that if new counsel were not
obtained, the Court would strike its Answer and direct the Clerk to enter
default against it.
Defendant Reckenbeil and the Kelly Defendants subsequently
provided their addresses to the Clerk and appear to have the intention of
proceeding pro se in this matter. The record discloses no further filings by
Defendants Bokke IV, Eley, Niemand, or Mannion.

1

The Court directed the Clerk to mail a copy of its Order allowing counsel to withdraw
from further representation of Defendant Mannion at his last known address. [Doc. 90].
That mailing apparently did not reach Defendant Mannion and was returned to the
Clerk’s Office. [Doc. 96]. Presumably, Defendant Mannion’s now former counsel also
attempted to provide the Defendant with a copy of this Order, as they would be
obligated to do. Despite these multiple attempts to notify him, Defendant Mannion has
not responded to the Court’s Order.

3

On August 15, 2013, the Bank filed the present Motion to Strike and
for Entry of Default [Doc. 106], as well as a Motion to Compel [Doc. 108].
Subsequent to the filing of these motions, the mediator filed a status report
indicating that the parties had commenced settlement negotiations and had
agreed to resume negotiations on September 10, 2013. [Doc. 111]. On
September 11, 2013, the mediator filed another report, advising that the
Bank had reached an agreement on all issues with respect to the Third
Party Defendants, the Kelly Defendants, and Defendant Niemand. The
mediator further reported that he had been informed that Bokke IV had
been administratively dissolved and that Defendant Eley had filed for
bankruptcy, and that they did not appear at the mediation. [Doc. 114]. The
mediator further reported that the mediation impassed as to Defendants
Mannion and Reckenbeil. [Id.].
On September 13, 2013, the Bank filed a supplement to its Motion to
Compel (1) advising that it was withdrawing its motion with respect to
Defendant Reckenbeil; (2) confirming that Defendant Eley had filed for
bankruptcy and attaching a copy of the Notice of Bankruptcy Case Filing;
and (3) requesting that the Motion to Compel be stayed as to Defendant
Niemand pending the filing of a Stipulation of Dismissal by the parties.

4

[Doc. 117]. The Bank further confirmed that its Motion to Compel remains
pending as to Defendants Bokke IV and Mannion. [Id.].
II.

DISCUSSION
As the Bank has now reached an agreement on all issues with

Defendant Niemand, the Bank’s Motion to Strike and for Entry of Default
shall be denied as to this Defendant. To the extent that the Bank’s Motion
to Compel seeks further discovery responses from Defendant Niemand
such motion shall be denied without prejudice with leave to renew in the
event that the parties fail to file a stipulation of dismissal as to this
Defendant.
With respect to Defendant Eley, the Bank has provided notice that
Eley has filed a bankruptcy case under Chapter 7 of the United States
Bankruptcy Code. Accordingly, the Court will consider this action stayed as
to this Defendant.
With respect to Defendant Mannion, the Court finds that this
Defendant has failed to provide comply with a direct Order of the Court.
Defendant Mannion was directed to obtain new counsel or notify the Clerk
in writing of their intention to proceed pro se in this case within twenty (20)
days from the entry of the Order, and he has failed to do so.

As for

Defendant Bokke IV, the Court clearly instructed it that a limited liability
5

company may not proceed pro se and that it must obtain new counsel
within twenty (20) days of the entry of the Order, and it has failed to do so.
The Defendants’ inaction has hampered the Bank’s ability to conduct
discovery or otherwise interact with them concerning the remainder of the
litigation. Moreover, Defendant Bokke IV is a limited liability company and
may not proceed in this action pro se. See Microsoft Corp. v. Computer
Serv. & Repairs, Inc., 312 F.Supp.2d 779, 782 (E.D.N.C. 2004). Finally,
the Court notes that neither of these Defendants has filed any response
opposing the Bank’s pending motions. For these reasons, the Court will
grant the Bank’s Motion to Strike the Answers of Defendant Bokke IV and
Mannion and will direct the Clerk to enter default against them.

ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Strike
and for Entry of Default [Doc. 98] is GRANTED IN PART and DENIED IN
PART as follows:
(1)

With respect to Defendants Bokke IV L.L.C. and Simon
Mannion, the Motion [Doc. 98] is GRANTED, and the Answers
of these Defendants are hereby STRICKEN;

6

(2)

The Clerk of Court is directed to make an entry of default
against Defendants Bokke IV L.L.C. and Simon Mannion;

(3)

With respect to Defendant Niemand, the Motion [Doc. 98] is
DENIED.

IT IS FURTHER ORDERED that this action is STAYED until further
Order of the Court with respect to Defendant James Eley only.
IT IS FURTHER ORDERED that the Plaintiff’s Motion for Sanctions
against Defendant Mannion [Doc. 106] is DENIED AS MOOT.
IT IS FURTHER ORDERED that the parties shall file a stipulation of
dismissal with respect to the settled claims within thirty (30) days of the
entry of this Order.
IT IS FURTHER ORDERED that the Plaintiff’s Motion to Compel
[Doc.

108],

as

supplemented

[Doc.

117]

is

DENIED

WITHOUT

PREJUDICE, with leave to renew such motion against Defendant Niemand
in the event that a stipulation of dismissal is not filed and against Defendant
Eley upon the lifting of the automatic stay.
IT IS SO ORDERED.

Signed: October 1, 2013

7