USA Trouser, S.A. de C.V. v. International Legwear Group, Inc. et al
Filing
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ORDER denying 54 Motion for Summary Judgment as to Claims Against the Defendant International Legwear Group,Inc. (SEE ORDER FOR DETAILS) Signed by District Judge Martin Reidinger on 9/22/12. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv244
USA TROUSER, S.A. de C.V.,
)
)
Plaintiff,
)
)
vs.
)
)
INTERNATIONAL LEGWEAR
)
GROUP, INC.; WILLIAM SHEELY;
)
JOHN SANCHEZ; and SCOTT
)
ANDREWS,
)
)
Defendants.
)
_______________________________ )
ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion for Summary
Judgment as to Claims Against the Defendant International Legwear Group,
Inc. [Doc. 54].
I.
PROCEDURAL BACKGROUND
On September 6, 2011, the Plaintiff commenced this action in the
Superior Court for Burke County, North Carolina, against the Defendants
International Legwear Group, Inc. (“ILG”), William Sheely, John Sanchez, and
Scott Andrews. [Doc. 1-1]. The Defendants, who were all represented by the
same counsel, removed the action to this Court on September 21, 2011.
[Doc. 1].
On December 28, 2011, Defendants’ counsel moved to withdraw from
representing ILG further in this matter. [Doc. 16]. On January 11, 2012,
counsel’s motion was granted, and the Court directed ILG to retain new
counsel within ten (10) days. [Doc. 20]. When ILG failed to comply with the
Court’s Order, the Court ordered the Clerk to strike ILG’s Answer and to make
an entry of default against it. [Doc. 23]. The Clerk made entry of default
against ILG on February 2, 2012. [Doc. 24].
The Plaintiff now moves for summary judgment as to all claims pending
against ILG. [Doc. 54]. The Plaintiff has not applied to the Court for a default
judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure.
II.
DISCUSSION
Because an entry of default has been made against ILG, the appropriate
avenue of relief for the Plaintiff to pursue is a default judgment, not summary
judgment. As one court has explained:
A default judgment and a summary judgment are two
very different types of judgments. If a court has
personal jurisdiction over a defendant and the
defendant fails to appear, a default judgment may be
rendered against him. In an action in which the
defendant defaults, the well pled allegations of the
complaint as to liability are established. However,
they are not litigated but established by default.
Judgment by default commands the full effects of
claim and defense preclusion; but, judgment by
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default does not warrant issue preclusion for the very
reason that the issues have not been litigated or
decided.
On the other hand, summary judgments that rest on
the lack of any genuine issue of material fact going to
the merits of claim or defense, invoke both claim and
issue preclusion. The styling of a decision as a
summary judgment may not give increased preclusive
effect to a judgment if summary judgment was an
inapt procedural vehicle for the judgment.
Phillips Factors Corp. v. Harbor Lane of Pensacola, Inc., 648 F.Supp. 1580,
1582-83 (M.D.N.C. 1986) (internal citations, quotation marks, and footnotes
omitted). The Court finds the reasoning of the Middle District persuasive and
therefore concludes that the appropriate procedure for the Plaintiff to follow
in this case is to pursue a default judgment pursuant to Rule 55(b)(2).
Accordingly, the Plaintiff’s Motion for Summary Judgment against ILG is
denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Summary
Judgment as to Claims Against the Defendant International Legwear Group,
Inc. [Doc. 54] is DENIED.
Signed: September 22, 2012
IT IS SO ORDERED.
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