AdvanceMe Inc v. RapidPay LLC

Filing 142

REPORT AND RECOMMENDATIONS re 33 MOTION for Default Judgment as to RapidPay, LLC filed by AdvanceMe Inc, recommending Rapidpay and its representatives be enjoined from producing, selling or importing any products and/or services that infringe U.S. Patent No. 6,941,281. Parties have 10 days to file objections. Signed by Judge John D. Love on 11/2/06. (mjc )

AdvanceMe Inc v. RapidPay LLC

Doc. 142

Case 6:05-cv-00424-LED

Document 142

Filed 11/02/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION ADVANCEME, INC. Plaintiff, vs. RAPIDPAY, LLC, BUSINESS CAPITALCORPORATION, FIRST FUNDS LLC, MERCHANT MONEY TREE, INC., REACH FINANCIAL, LLC and FAST TRANSACT, INC. dba SIMPLE CASH Defendants. § § § § § § § § § § § §

CIVIL ACTION NO. 6:05cv424

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
O n October 30, 2006, the Court heard argument on AdvanceMe, Inc.'s Motion for Default J u d gm e n t Against Defendant Rapidpay, LLC (Doc. No. 33). This motion was previously set for h e a r in g on June 7, 2006, and continued to June 15, 2006. AdvanceMe then notified the Court that R a p i d p a y had, in fact, filed for bankruptcy protection in the Southern District of New York, in case n u m b e r 06-10453BRL. Upon notice of the bankruptcy proceeding and resulting stay, this Court c a n c e l e d the hearing it had previously set on the motion for default. On July 31, 2006, AdvanceMe n o tifie d the Court that Rapidpay had been dismissed from bankruptcy. AdvanceMe attached a copy o f an Order Dismissing Chapter 11 Bankruptcy Pursuant to § 1112(B)(1) of the Bankruptcy Code, e n t e re d July 25, 2006 by the Honorable Burton R. Lifland, United States Bankruptcy Judge. Because o f the dismissal of the bankruptcy, and the resulting lifting of the automatic stay, AdvanceMe reurged i ts Motion for Default Judgment against Rapidpay. Notice of the hearing was sent to Rapidpay's p r e s i d e n t , Stephanie Nimberg, and general counsel, Lawrence Morrison, at 17 Battery Place, Suite 1 3 3 0 , New York, NY 10004.

Dockets.Justia.com

Case 6:05-cv-00424-LED

Document 142

Filed 11/02/2006

Page 2 of 2

Mr. Otis Carroll, counsel for AdvanceMe, solely appeared at the hearing. Mr. Carroll re c o u n t e d the procedural history of this case and pointed out that AdvanceMe has not secured c o u n s e l since February 17, 2006, when its sole attorney in this matter, Guy Harrison, sought to w ith d ra w (Doc. 18), and the Court granted Mr. Harrison's motion (Doc. 19). Mr. Carroll advised th e Court that Rapidpay has not filed anything with the Court since February 17, 2006, and has not c o m p l ie d with the Court's discovery order to date. A c c o r d in gly, the Magistrate Judge issues the following Report and Recommendation and R E C O M M E N D S , under Federal Rules of Civil Procedure 37 and 55, that Defendant Rapidpay, LLC, its officers, agents, servants, employees, and all persons and entities acting in concert with Rapidpay, o r in participation with Rapidpay, be enjoined from making, using, selling, or offering for sale in the U n i te d States, or importing into the United States, any products and/or services that infringe, induce th e infringement of, or contributorily infringe U.S. Patent No. 6,941,281 entitled "Automated P a ym e n t . " A party's failure to file objections to the findings, conclusions, and recommendations c o n ta in e d in this Report within ten days after service with a copy thereof shall bar that party from d e novo review by the district judge of those findings, conclusions and recommendations and, except

. u p o n grounds of plain error, from appellate review of the unobjected-to proposed factual findings
a n d legal conclusions accepted and adopted by the district court. Douglass v. United Services A u to m o b ile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

So ORDERED and SIGNED this 2nd day of November, 2006.

___________________________________ JOHN D. LOVE UNITED STATES MAGISTRATE JUDGE