Buttar v. November
Filing
12
ORDER granting 5 Motion to Set Aside Default, the default entered by the Clerk of this court is SET ASIDE, Mark Allen November answer due 6/23/2011; denying with prejudice 6 Motion to Dismiss or in the Alternative to Transfer Venue. Signed by District Judge Max O. Cogburn, Jr on 6/9/2011. (Pro se litigant served by US Mail.) (tmg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:10cv668
RASHID A. BUTTAR,
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Plaintiff,
Vs.
MARK ALLEN NOVEMBER,
Defendant.
_______________________________
ORDER
THIS MATTER is before the court on defendant’s Motion to Set Aside Entry of
Default (#5) and defendant’s Motion to Dismiss or Transfer Venue (#6). Plaintiff has filed
his response to defendant’s motions and defendant has not filed a reply.
While the docket indicates that defendant is proceeding pro se, it appears from his
motion as well as defendant’s brief that he is being assisted by an attorney. While such
practice does not violate any local rules, counsel who is investing valuable time should make
an appearance and engage their opponent as well as the court.
FINDINGS AND CONCLUSIONS
I.
Defendant’s Motion to Set Aside Entry of Default
In determining whether to set aside entry of default, the Court of Appeals for the
Fourth Circuit, has clearly stated, as follows:
`an extensive line of decisions' has held that Federal Rule of Civil Procedure
55(c) must be `liberally construed in order to provide relief from the onerous
consequences of defaults and default judgments.'
Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954 (4th Cir. 1987) (citation omitted). Where
a party moves to set aside entry of default, "justice demands that a blameless party not be
disadvantaged by the errors or neglect of his attorney which cause a final, involuntary
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termination of proceedings." United States v. Moradi, 673 F.2d 725, 728 (4th Cir. 1982).
Whether a default should be set aside is in the sound discretion of the district court, Park
Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir. 1987), and "an abuse of discretion
in refusing to set aside a default judgment `need not be glaring to justify reversal.'" Jackson
v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980) (quoting Keegel v. Key West & Caribbean
Trading Co., 627 F.2d 372, 374 (D.C. Cir. 1980; emphasis added); accord Lolatchy v. Arthur
Murray, Inc., supra.
Since Tolson v. Hodge, 411 F.2d 123 (4th Cir. 1969), the Court of Appeals for the
Fourth Circuit has held steadfast to its belief that the civil rules should be construed liberally
to set aside a default. All that need be shown to set aside entry of default under Rule 55(c)
is good cause. Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808
(4th Cir. 1988). Further, the Court of Appeals for the Fourth Circuit has warned that it has
taken an increasingly liberal view of setting aside defaults. Augusta, supra.
As set forth in Augusta, the first step is to determine whether or not the claimant was
personally responsible for the default.
This focus on the source of the default represents an equitable balance between
our preference for trials on the merits and the judicial system's need for finality
and efficiency in litigation. When the party is blameless and the attorney is at
fault, the former interests control and a default judgment should ordinarily be
set aside. When the party is at fault, the latter interests dominate and the party
must adequately defend its conduct in order to show excusable neglect.
Id. The key is to distinguish between the fault of the defendant and the fault of his attorney.
In this case, it appears that the fault lies with defendant as, having signed the Notice of
Removal pro se, he purports to have removed this action without the assistance of counsel.
See Notice of Removal (#1).
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II.
Determining Fault
Defendant’s reason for being in default - - slow mail between California and North
Carolina in the week after Christmas - - is simply contrary to the record before the court. On
December 27, 2010, plaintiff, apparently from his home in California, signed the Notice of
Removal and mailed the removal package that day to the Clerk of this court.1 Two days later
on December 29, 2010, the Clerk of this Court received such package and opened this action.
See Docket Entry (#1). Defendant’s contention that he was “a victim of the slow delivery
of the U.S. mail between Christmas and the week after New Years” Motion, p. 11, is,
therefore, without merit.
III.
The Actual Cause of Delay
Having removed the action before answering plaintiff’s Complaint, Rule 81, Federal
Rules of Civil Procedure, provided the procedure and deadlines for filing a responsive
pleading, as follows:
(2) Further Pleading.
After removal, repleading is unnecessary unless the court orders it. A
defendant who did not answer before removal must answer or present other
defenses or objections under these rules within the longest of these periods:
(A) 21 days after receiving — through service or otherwise — a copy of the
initial pleading stating the claim for relief;
(B) 21 days after being served with the summons for an initial pleading on file
at the time of service; or
(C) 7 days after the notice of removal is filed.
Fed.R.Civ.P. 81(c)(2) (emphasis added). Defendant’s Answer or other responsive pleading
was due to be filed within seven days of filing the Notice of Removal on December 29, 2010.
Defendant’s responsive pleading was due January 6, 2011, and the Clerk of this Court
properly entered default on January 7, 2011. It is readily apparent that defendant or an
1
The Clerk of court did not save a copy of the envelope; however, the court notes
that in the Certificate Of Service, defendant utilized overnight mail to serve plaintiff.
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attorney assisting him failed to consider Rule 81 and thus the deadline was missed.
III.
Promptness in Moving to Set Aside Default
After default was entered January 7, 2011, defendant filed the instant Motion to Set
Aside Entry of Default more than 30 days later. The court assumes that defendant had actual
notice within a few days of the Clerk mailing him a copy of the default. Moving more than
30 days after default was entered was not prompt action. A month lapse does not qualify as
"reasonable promptness," id., at 204; Consolidated Masonry v. Wagman Construction Corp.,
383 F.2d 249, 252 (4th Cir. 1967), especially where, as here, the defaulting party is the party
who caused the action to be removed to this court.
IV.
Consideration of Other Factors
Despite the fault lying solely with defendant, his failure to read Rule 81, and his
failure to promptly move for relief under Rule 55(c), the Court of Appeals for the Fourth
Circuit has strongly suggested that the trial courts take a liberal approach in determining
whether to set aside a default. While three of the six factors patently weigh against setting
aside default, the court must consider three additional factors:
When deciding whether to set aside an entry of default, a district court
should consider whether the moving party has a meritorious defense, whether
it acts with reasonable promptness, the personal responsibility of the defaulting
party, the prejudice to the party, whether there is a history of dilatory action,
and the availability of sanctions less drastic.
Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204 -205 (4 th Cir. 2006) (citations
omitted). The court will deem the “history of dilatory action” as favorable to defendant as
no history of dilatory action has been shown outside the present matters. This leaves for the
court consideration of whether defendant has a meritorious defense and whether sanctions
less drastic than dismissal are available.
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A.
Meritorious Defense
The court has considered whether defendant has a meritorious defense. Defendant has
made no affirmative showing that he has a substantive “meritorious defense” to the claims
made by plaintiff in his Complaint; instead, defendant has filed a Motion to Dismiss claiming
a lack of personal jurisdiction (despite having removed this action), failure to state a claim,
and failure to name a necessary party as reasons to dismiss the Complaint.
To determine whether defendant can assert any meritorious defense, the court has first
considered the nature of plaintiff’s claims. Plaintiff alleges that he invested $260,000.00
dollars with defendant, the purpose of which he was lead to believe was commercialization
of an invention for generating hydroelectricity. Plaintiff contends that he reasonably relied
on misrepresentations by defendant, that defendant defrauded him, and that he acted
maliciously and deceptively. The court will, in light of the allegations of the Complaint,
consider whether defendant has proffered any meritorious defense, either procedural or
substantrive.
1.
First Defense: Motion to Dismiss or Transfer Venue Based on a
Lack of Minimum Contacts
In moving to dismiss based on a lack of personal jurisdiction, defendant seeks
transfer to the United States Court for the Central District of California where he resides.
Venue of an action, such as this, that is removed to a federal court from a state court based
on diversity jurisdiction is governed by the venue provisions of 28, United States Code,
Section 1441(a). Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 547
(E.D.N.C.2005); Three M Enterprises, Inc. v. Texas D.A.R. Enterprises, Inc., 368 F.Supp.2d
450, 455-56 (D.Md. 2005). Section 1441(a) provides in relevant part that "any civil action
brought in a State court of which the district courts of the United States have original
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jurisdiction, may be removed by the defendant or the defendants, to the district court
embracing the place where such action is pending." Id. (emphasis added). The district court
in Three M Enterprises, Inc. explained:
By requiring removal to the district court for the district in which the state
action is pending, Section 1441(a) "properly fixes the federal venue in that
district." Hollis v. Florida State University, 259 F.3d 1295, 1300 (11th
Cir.2001). Indeed, courts have recognized that Section 1441(a) establishes
federal venue in the district where the state action was pending "as a matter of
law," even if venue would be "improper under state law when the action was
originally filed." See Hollis, 259 F.3d at 1300 (citing Serrano v. United States
Fire Ins. Co., No. EP-00-CA-255-DB, 2000 WL 33348220, *1-2 (W.D.Tex.
Nov. 7, 2000); Bacik v. Peek, 888 F.Supp. 1405, 1413 (N.D.Ohio 1993); and
R. Givens, 1 Manual of Federal Practice § 2.28 (5th ed.1998)).
Id., at 454 (footnote omitted). The district court in Three M Enterprises, Inc. went on to note
that while Section 1441(a) does not give “a removing defendant a choice of districts to which
to remove, and that it would not be entirely accurate to characterize removal as the voluntary
relinquishment of a legal right,” it is “the fact that the removal statute establishes venue as
a matter of law [that] precludes Defendants' instant Motion to Dismiss or transfer the action
based on improper venue.” Id., at fn. 4 (citation and corresponding quotation marks deleted;
emphasis added). See also Kerobo v. Southwestern Clean Fuels Corp., 285 F.3d 531 (6 th Cir.
2002)(venue in a case removed from state court is governed solely by § 1441(a), requiring
denial of motion to dismiss or transfer venue under Section 1406(a)).
By removing this action to the Western District of North Carolina, defendant cannot
argue that such district is an improper venue. Title 28, United States Code, Section 1404(a)
provides for a motion to transfer venue by a “defendant in a removed action, if it believes
that the case can be better litigated or tried in another court, has the option of seeking transfer
pursuant to 28 U.S.C. § 1404(a).” Godfredson v. JBC Legal Group, P.C. , supra, at 556
(citation omitted). Section 1404(a) provides, as follows:
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For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division
where it might have been brought.
28 U.S.C. § 1404(a). In Jim Crockett Promotions, Inc. v. Action Media Group, Inc., 751 F.
Supp. 93 (W.D.N.C. 1990), this court established a litany of considerations applicable to any
motion to transfer made under 28, United States Code, Section 1404(a). In order to
determine whether transfer is proper, a balance must be struck between the competing
interests. Unless the balance is tipped strongly in favor of the moving party, Collins v.
Straight, Inc., 748 F.2d 916, 921 (4th Cir. 1984), plaintiff’s choice of forum should not be
disturbed. Upon a motion to transfer, the moving party carries the burden, 1A Moore's
Federal Practice, paragraph 0.345[5] at 4360 (Matthew Bender 1990); and the burden is
heavy. Datasouth Computer Corp. v. Three Dimensional Technologies, Inc., 719 F. Supp.
446, 451 (W.D.N.C. 1989). The court has reviewed each factor and determines that the
balance strongly favors retention of this action in this district.
2.
Lack of Personal Jurisdiction
Turning next to the Motion to Dismiss, defendant contends that this action should be
dismissed or transferred based on a lack of minimum contacts with North Carolina. Review
of the affidavits submitted by plaintiff make it clear that defendant has sufficient contacts
with this forum to require him to defend this action in this district. At the constitutional
level, whether or not to exercise jurisdiction over a defendant is a question of fairness.
International Shoe Co. v. Washington, 326 U.S. 310, 317-20 (1945). However, determining
what is fair requires review of the quantity and quality of the defendant's contacts with the
forum state. Perkins v. Benquet Mining Co., 342 U.S. 4376 (1952). Constitutional concerns
only arise where jurisdiction is allowed pursuant to a state's long-arm statute. As the Court
of Appeals for the Fourth Circuit has stated:
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[W]hen evaluating the propriety of jurisdiction obtained pursuant to a longarm statute, a two-step analysis is normally required. First, we must determine
whether the statutory language applies to the defendant; second, if the statutory
language applies, we must determine whether the statutory assertion of
jurisdiction is consistent with the due process clause of the Constitution.
English & Smith v. Metzger, 901 F.2d 36, 38 (4 th Cir. 1990) (citation omitted).
In considering defendant's Motion to Dismiss, analysis begins with the two-step
approach furnished by the circuit court. The North Carolina Supreme Court has held that the
state's jurisdictional statute applies to a defendant who meet the minimal contacts
requirement of International Shoe Co. v. Washington, supra. See Dillon v. Numismatic
Funding Corp., 291 N.C. 674 (1977); see also Western Steer-Mom & Pops v. FMT Invs.,
Inc., 578 F. Supp. 260, 264 (W.D.N.C. 1984) . The two-pronged approach approved by the
circuit in English & Smith “collapses into the question of whether (the Defendants have) the
minimum contacts with North Carolina.” Fieldcrest Mills, Inc. v. Mohasco Corp., 442 F.
Supp. 424, 426 (M.D.N.C. 1977).
There are five factors used in determining whether the long-arm statute and minimum
contacts have been satisfied:
(1)
(2)
(3)
(4)
(5)
quantity of the contacts;
nature and quality of the contacts;
source and connection of the cause of action to the contacts;
interest of the forum state; and
convenience.
Western Steer-Mom & Pops v. FMT Invs., Inc., supra, at 264; see Fieldcrest Mills, Inc. v.
Mohasco Corp., supra, at 427; see also N.C. Gen. Stat. § 1-75.4(5) (North Carolina long-arm
statute). The burden is on plaintiff to establish that the long-arm statute provides for
jurisdiction over these defendants. Marion v. Long, 72 N.C. App. 585, cert. denied, 313 N.C.
604 (1985). Therefore, the materials and arguments submitted by plaintiff and defendant will
be reviewed in light of the five considerations found in Western Steer-Mom & Pops v. FMT
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Invs., Inc., supra, seriatim.
Plaintiff has submitted affidavits which tend to show that defendant sought out
business opportunities in North Carolina, performed work for an individual in North
Carolina, stayed in the state in connection with his business endeavors for a substantial
period of time, made telephone calls to a North Carolina resident who received those calls
in North Carolina, and he caused to be wired by plaintiff money from a North Carolina
account to an account in California. Affidavit of Rashid A. Buttar, at ¶¶ 3-5; Affidavit of
Robert W. Plarr, at ¶¶ 4-6.
The North Carolina long-arm statute specifically requires
"substantial activity" within the state. N.C. Gen. Stat. Section 1-75.4(d) (1989). The court
finds the contacts to be substantial activity in North Carolina.
The court has also considered the “Nature and Quality of the Contacts.” From what
this court can gather from the pleadings, the causes of action directly arise from defendant’s
contacts in North Carolina. Contacts with a state should be viewed together, not in isolation.
Hirschkop & Grad, P.C. v. Robinson, 757 F.2d 1499, 1503 (4th Cir. 1985). Viewed together,
each of the contacts with the forum state appear to show that defendant visited the State of
North Carolina in furtherance of the enterprise. Thus; the quality of these contacts appear to
be high in that the contacts were made in furtherance of the business relationship or scheme
which is at the core of this dispute.
The court has also considered the “Source and Connection of the Action to the
Contacts.” The nexus between the contacts and the source of action is direct and unbroken.
The court has also considered the “Interest of the Forum State.” The intent of the
North Carolina long-arm statute is to assert in personam jurisdiction to the full extent
permitted by the Due Process Clause of the United States Constitution. Kaplan School
Supply Corp. v. Henry Wurst, Inc., 56 N.C. App. 567, cert. denied, 306 N.C. 385 (1982).
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There is a mandate that the North Carolina long-arm statute be given liberal construction,
thereby favoring the finding of personal jurisdiction. F.D.I.C. v. Kerr, 637 F. Supp. 828
(W.D.N.C. 1986). As exhibited in the long-arm statute, North Carolina has a substantial
interest in the execution of contracts within this state, promises of services to be rendered in
this state, solicitation of business within the state, and goods or intellectual property being
licensed or sold to corporate residents of the state. See N.C. Gen. Stat. §§ 1-75.4(5)(a), et
seq. Here, all the activities were in furtherance of the business enterprise; plaintiff invested
substantial sums in the enterprise; and plaintiff contends he was defrauded of his investment.
North Carolina’s interest in the subject matter of this litigation is high as it directly relates
to persons engaged in a business endeavor or obtaining funding for a business endeavor in
North Carolina.
Finally, the court has considered the convenience of the forum. Whether the travel
required in this case will be by or on behalf of defendant from California to North Carolina,
or by or on behalf of plaintiff to California, the court is aware of the considerable distance
and cost involved. If defendant were to have counsel appear, this district's requirement of
local counsel could eliminate much of the inconvenience of travel on behalf of defendant.
Defendant having purposely directed activities toward a resident of the State of North
Carolina, the contacts were sufficient to have led defendant to "reasonably anticipate being
haled into court," in North Carolina. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
at 297. Therefore, the undersigned determines that this court has jurisdiction over the
defendant and that the exercise of such jurisdiction would not offend traditional notions of
fair play or substantial justice. International Shoe Co. v. Washington, 326 U.S. at 316. The
court will deny the motion to dismiss premised on lack of personal jurisdiction.
3.
Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
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In sum, when ruling on a Rule 12(b)(6) motion, "a judge must accept as true all of the
factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (citations omitted). A complaint "need only give the defendant fair notice of
what the claim is and the grounds upon which it rests." Id., at 93 (alteration and internal
quotation marks omitted). However, to survive a motion to dismiss, the complaint must
"state[ ] a plausible claim for relief" that "permit[s] the court to infer more than the mere
possibility of misconduct" based upon "its judicial experience and common sense." Ashcroft
v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950 (May 18, 2009). While a plaintiff is not required
to plead facts that constitute a prima facie case in order to survive a motion to dismiss, see
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), "[f]actual allegations must be
enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
The essential elements of a claim of fraud by misrepresentation are: (1) a false
representation or concealment of a material fact, (2) that was reasonably calculated to
deceive, (3) which was made with the intent to deceive, (4) that did in fact deceive, and (5)
resulted in damage. Jolly v. Acad. Collection Serv., 400 F.Supp.2d 851 (M.D.N.C. 2005).
To satisfy the specificity requirements of Rule 9(b), it is plaintiff’s obligation to plead the
time, place, and contents of the false representations, as well as the identity of the person
making the representation and what such person obtained thereby. Review of plaintiff’s
Complaint reveals that Plaintiff has set out facts that would support his cause of action, he
has alleged misrepresentations made by defendant and his reliance on those
misrepresentations, and he has alleged damages in the amount of $260,000.00 which he
transferred via wire to defendant. See Complaint, ¶¶ 11-33. Plaintiff has, therefore, stated
a cause of action. This motion will be denied.
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4.
Failure to Join an Indispensable Party
Defendant next contends under Rule 12(b)(7), Federal Rules of Civil Procedure, that
this action should be dismissed because defendant’s wife is an indispensable party. Rule
12(b)(7) provides for dismissal of an action where a litigant fails to join a party under Rule
19. Fed.R.Civ.P. 12(b)(7). In ruling on a motion to dismiss for failure to join a necessary and
indispensable party, a court must accept as true the allegations of the Complaint. Davis Cos.
v. EmeraldCasino, Inc., 268 F.3d 477, 479 n.2 (7th Cir.2001). In addition, the moving
defendant has the burden of showing that a party must be joined for just adjudication. Ploog
v. HomeSide Lending, Inc., 209 F.Supp.2d 863, 873 (N.D.Ill.2002).
A two-step inquiry is required. S. Co. Energy Mktg., L.P. v. Va. Elec. & Power Co.,
190 F.R.D. 182, 185 (E.D.Va.1999). First, a court must determine whether a party is
necessary to the action. Id. In making this determination, three factors are considered: (1)
whether complete relief can be accorded among the parties without joinder; (2) whether the
absent person's ability to protect his own interest will be impaired; and (3) whether any
existing parties might be subject to risk of multiple or inconsistent obligations. Second,
where a court decides a party is necessary but cannot be joined, a court must then determine
whether the party is indispensable to the action.
Determinations as to necessity and
indispensability under Rule 19 are not mechanical and "the court must consider the practical
potential for prejudice in the context of the particular factual setting presented by the case
at bar." Id., at 185
Review of the Complaint and defendant’s motion reveals no basis for finding that
defendant’s wife is an indispensable party. There are no allegations or contentions of any
dealings with defendant’s wife, no alleged misrepresentation made by her, or any contention
that she did anything to convince plaintiff to invest in the business opportunity presented by
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defendant. There simply is no showing at the present time that absent the presence of
defendant’s wife complete relief cannot be afforded or that such person’s ability to protect
her own interests will be impaired. This motion is, therefore, without merit.
5.
Substantive Defenses
At page nine of his motion, plaintiff states that he “den[ies] each and every allegation
of the Plaintiff’s complaint” and that he has “identified over 61 potential witnesses to refute
ever[y] allegation.” Motion, p. 9. Reading such statement in a light most favorable to
defendant, it is plausible that he has a defense to plaintiff’s claims of fraud through
misrepresentation. Unlike breach of an installment loan agreement, the elements of a claim
for fraud are susceptible to many defenses. Whether or not these unspecified defenses are
meritorious is yet to be seen; however, the court agrees with the fundamental principle that
where the claim is fraud and treble damages are sought, the better course is to hear the
defenses. This especially true where, as here, what has been alleged in the Complaint
amounts extreme conduct that could encompass not only fraud, but elder abuse. See
Complaint, ¶¶ 4-10. With some hesitation, the court agrees with defendant that such factual
contentions merit more that decision by default, especially where there is a willing, although
dilatory, defendant.
6.
Conclusion as to Defenses
While defendant’s procedural defenses are all without merit and will be denied, it is
apparent that defendant denies the substantive allegations of the Complaint and is prepared
to defend against such contentions. The court will find in defendant’s favor on this factor.
B.
Sanctions Less Drastic than Default
Review of plaintiff’s response does not reveal that any sanctions have been sought or
proposed in the alternative in the event the court were to allow the default to be set aside.
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The court would certainly consider costs and fees incurred in bringing the default and in
responding to the motion to set it aside, but only at the conclusion of trial and after the parties
have had an opportunity to resolve such issue amicably. This factor is, therefore, neutral.
V.
Conclusion
For the reasons discussed above, the court finds after a consideration of all the factors
that the default should be set aside. The court will, however, deny each motion to dismiss
as well as deny the motion to transfer as this district is an appropriate venue for resolution
of this dispute.
***
Finally, defendant is advised to seek the assistance of counsel licensed to practice in
this court as plaintiff seeks damages which could amount to nearly $1,000,000.00. Federal
court is simply no place to litigate without the help of experienced counsel. Defendant is
advised that if he proceeds pro se, the rules applicable to others will also be applicable to
him. If he lacks confidence in the mails, he should utilize an overnight service that provides
tracking and make sure that documents are filed within the time allowed.
ORDER
IT IS, THEREFORE, ORDERED that
(1)
defendant’s Motion to Set Aside Entry of Default (#5) is GRANTED, the
default entered by the Clerk of this court is SET ASIDE, and defendant shall
Answer the Complaint within 14 days of the date this Order is filed; and
(2)
defendant’s Motion to Dismiss or in the Alternative to Transfer Venue (#6) is
DENIED WITH PREJUDICE in its entirety for the reasons above discussed.
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Signed: June 9, 2011
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