Xlear et al v. STS Health

Filing 89

MEMORANDUM DECISION AND ORDER dismissing 49 Counterclaim for failure to prosecute and entering Default against STS Health. By no later than 9/24/19, Plaintiff is to file a motion for default judgment and affidavit re claims that can be made certain by computation. Signed by Judge David Nuffer on 9/12/19 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
XLEAR, INC., a Utah corporation, and
JONES BOZEMAN FAMILY LIMITED
PARTNERSHIP,
Plaintiff,
v.
STS Health, LLC, a Virginia Limited
Liability Company,

MEMORANDUM DECISION AND
ORDER:
• DISMISSING [49] DEFENDANT’S
COUNTERCLAIM FOR
FAILURE TO PROSECUTE;
• ENTERING DEFAULT AGAINST
DEFENDANT; AND
• DIRECTING PLAINTIFF TO
PREPARE AFFIDAVIT AND
PROPOSED ORDER FOR
DEFAULT JUDGMENT

Defendant.
Case No. 2:14-cv-00806-DN
District Judge David Nuffer

On May 2, 2019, counsel for Defendant was permitted to withdraw via order (the
“Previous Order”). 1 Defendant was ordered to retain new counsel and that new counsel was to
file an appearance within 21 days of the entry of the order. 2 Defendant was notified that if it
failed to file a notice of appearance of new counsel, Defendant may be subject to sanction
pursuant to Federal Rule of Civil Procedure 16(f)(1), including but not limited to default
judgment for Plaintiff and dismissal of Defendant’s counterclaim. 3
The 21-day period has expired, and Defendant has failed to comply with the Previous
Order. Based on this failure, IT IS HEREBY ORDERED as follows:

1

Order Granting [87] Motion to Withdraw as Counsel, docket no. 87, filed May 2, 2019.

2

Id.

3

Id.

Under the authority of Federal Rule of Civil Procedure 41(b) and (c), Defendant’s
counterclaim 4 is DISMISSED with prejudice.
Under the authority of Federal Rule of Civil Procedure 55(a), default is ENTERED
against Defendant.
In order to facilitate the entry of default judgment under Federal Rule of Civil Procedure
55(b), Plaintiff is ORDERED to prepare motion for default judgment as well as an affidavit
showing the amount due for Plaintiff’s claims that can be made certain by computation. Plaintiff
is to submit this motion no later than September 24. 2019.
Signed September 12, 2019.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

4

Answer, Affirmative Defenses, and Counterclaims to Plaintiff’s First Amended Complaint, docket no. 49, filed
March 25, 2016.

2