Pinpoint IT Services, LLC v. Atlas IT Export Corp.
Filing
33
OPINION AND ORDER that the Court DENIES Defendant's Motion to Change Venue, GRANTS Plaintiff's Motion to Strike Defendant's Memorandum in Opposition to Motion to Certify Entry of Default, GRANTS Defendant's Motion to Set Aside Def ault, DENIES Plaintiff's Motion for Default Judgment and forCertification of Default as Final as to Counts I and III of the Complaint, and DENIES Plaintiff's Motion for Leave to File a Supplemental Brief. Signed by District Judge Mark S. Davis and filed on 7/13/11. (jcow, )
---
UNITED
STATES
'
FILED
DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
PINPOINT IT SERVICES,
JUL 1 3 2011
ClFHK.US C^/Mid COURT
L.L.C.,
O^*^ K VA
Plaintiff,
v'
Civil Action No.
ATLAS
2:10cv516
IT EXPORT CORP.,
Defendant.
OPINION AND ORDER
This
filed
matter
by
to
before
both parties.
("Pinpoint"
Judgment
is
or
the
Plaintiff
"Plaintiff")
has
and for Certification
Counts
I
and
III
Court
of
the
of
on
a
number
of
Pinpoint
IT
filed
a
"Motion
for
Default
Judgment
as
motions
Complaint,"
a
Services,
"Motion
L.L.C.
Default
Final
to
as
Strike
Defendant's Memorandum in Opposition to Motion to Certify Entry
of
Default,"
Brief."
and
a
Defendant,
"Defendant"),
has
"Motion
Atlas
filed
for
IT
just
one
Leave
Export
to
File
Corp.
substantive
Supplemental
("Atlas"
motion,
or
entitled
"Motion to Set Aside Default and to Change Venue."1 Defendant has
also
requested,
regarding
its
on
Motion
two
to
Set
separate
Aside
occasions,
Default
and
oral
to
argument
Change Venue.
The Court notes that a "Motion for Sanctions" has also been
filed in this case by a non-party, Robert L. Vaughn. The Court
will address that motion in a separate Order.
After examining the Complaint,
memoranda,
the Court
finds
the motions,
that
the facts
and the associated
and legal
contentions
are adequately presented and oral argument would not aid in the
decisional process.
Fed.
R. Civ.
P.
78(b); E.D. Va. Loc. Civ.
7(J). The matter is therefore ripe for decision.
set
forth below,
Venue,
the Court
GRANTS
For the reasons
DENIES Defendant's Motion
Plaintiff's
Motion
to
R.
Strike
to Change
Defendant's
Memorandum in Opposition to Motion to Certify Entry of Default,
GRANTS
Defendant's
Motion
to
Set
Aside
Default,
DENIES
Plaintiff's Motion for Default Judgment and for Certification of
Default as
Final
as
to Counts
I
and III
of
the Complaint,
and
DENIES Plaintiff's Motion for Leave to File Supplemental Brief.
I.
FACTUAL & PROCEDURAL HISTORY
A.
Plaintiff
with
its
Pinpoint,
principal
Virginia, Compl.
SI 1,
Factual
a
History
Virginia
place
of
limited
business
in
liability
company
Virginia
Beach,
filed this suit against Defendant Atlas,
a
corporation organized under the laws of Puerto Rico and with its
principal place of business in Puerto Rico. Compl. f 2. The suit
seeks a declaration of non-liability,
with damages
Compl.
g[
3,
exceeding $75,000.00,
Prayer
when
and seeks
injunctive relief.
for Relief.
The events giving rise
2009,
alleges breach of contract
Plaintiff
to
entered
this
into
suit began on September 24,
an
agreement
with
Advanced
Health Media,
L.L.C.
("AHM"),
to provide
facility in Chesapeake, Virginia. Compl.
26,
2009,
wherein
Plaintiff
Defendant
Puerto
Rico
on
entered
into
would provide
behalf
of
an
that
Defendant
these
to AHM's
in turn,
SI 7.
IT
Plaintiff
was
services
on August
agreement
that
Compl.
required
with
services
so
obtain favorable offshore labor costs.
alleges
IT
to
AHM
Plaintiff
if
under
Defendant
8-9.
the
from
could
Plaintiff
contract
to
identify and hire forty-five consultants within 120 days of the
execution
of
perform its
the
agreement
in
contract with AHM.
order
Compl.
to
5
allow
10.
Plaintiff
However,
to
according
to Plaintiff,
Defendant breached this provision of the contract.
Compl.
Plaintiff
st
15.
also
alleges
that
Defendant
materially
breached its contract by missing target deadlines and performing
the contract poorly.
asserts
hire
the
that
l 15.
contract
did
Defendant,
not
require
forty-five consultants by the target
contract
consultants
21,
the
Compl.
at
5
merely
were
provided
it
to
identify
date but
rates
identified and hired by that
if
rather
and
that
the
forty-five
date.
Docket No.
3.
According to Plaintiff,
Defendant
discount
on the other hand,
allowed
for
the contract between Plaintiff and
Plaintiff
to
terminate
the
contract
without cause upon three months' notice and allowed Plaintiff to
terminate
the contract
for cause at any time.
Given an alleged material
breach on
the part
Compl.
fla
13-14.
of Defendant,
by
letter of April 1,
Defendant
2010,
effective
Plaintiff terminated the contract with
March
25,
2010.
Compl.
because of Defendant's alleged breach,
March 25,
2010,
a
20.
Further,
prior to termination on
Plaintiff amended its
contract with AHM,
which
required the Plaintiff to hire consultants at a higher price in
Virginia. Compl.
a 17. On July 9,
2010,
over three months after
Plaintiff terminated its contract with Defendant,
a
letter
contract
Compl.
25,
to
and
f 22.
2010,
Plaintiff
alleging
challenging
damages
Court
October
in
stating
contract
with
contract,
and
any
reason.
breached
III
from
the
of
the
termination.
which Plaintiff alleges tortiously interfered with its
B.
Complaint
resulting
termination
Defendant also forwarded this letter to AHM on July
amended contract with AHM.
On
the
Defendant sent
the
seeks
interfering
an
this
18,
2010,
Plaintiff
g[
contract
42.
any
Compl.
filed
seeks
a
Plaintiff
not
Count
the
with
fl 53.
its
three-count
Declaration
entitled
to
did
indebted
from
terminate
not
to
Defendant
for
that
two
parties.
Finally,
from
Plaintiff's
its
said
alleges
Defendant
the
breach
II
preventing
further
relationships with AHM.
History
was
is
between
injunction
I
that
Plaintiff
Compl.
26.
Plaintiff
Count
Defendant,
that
SIS! 24,
Procedural
Court.
that
Compl.
Defendant
Count
tortiously
contractual
The president
of
Atlas,
Julio
Pamias,
service of process papers on November 16,
Docket No.
15,
7,
2010 pursuant
to
Rule
Federal Rules of Civil Procedure. Fed. R.
Defendant
did
requested
that
not
file
the
default on December 16,
Jane
No.
local
judgment
23,
and for
Counts
response,
aside
Court
I
Docket No.
III
and
25,
to
already
submitted
a
vice
Atlas,
hac
Plaintiff
the
2010,
change
filed
The Clerk entered
Defendant
pro
However,
2010.
for
motion
Docket No.
Defendant
Docket
No.
motion
to
final as
No.
aside
set
Docket
11.
13.
filed a motion
Docket
for
for default
judgment as
venue.
a
on December
filed a motion
Complaint.
the
against
8.
appear
of
default
7.
of
Plaintiff
Docket No.
for
2010,
on December
had
6;
12{a)(l). When
pleading,
certification of default
and
default
Defendant
Docket No.
12 (a) (1)
P.
enter
which was granted on December 21,
On December
to
of
2010.
to
Civ.
responsive
2010.
counsel
Becker Whitaker
9,
a
Clerk
Defendant on December 15,
2010,
2010.
at 9. Defendant was required to file a responsive
pleading by December
20,
personally received
15.
In
to
set
Although
default,
it
did not file its Memorandum in Opposition to Plaintiff's Motion
to
17.
Certify Entry of
On
January
24,
Default
2011,
until
January
Plaintiff
Defendant's Memorandum
in Opposition
of
a memorandum
Default
Docket No.
along with
18.
On January 28,
filed
18,
2011.
a
motion
to Motion
in
support
2011 and March 22,
Docket No.
to
strike
to Certify Entry
of
that
2011,
motion.
Defendant
requested a
and
to
hearing
Change
regarding
Venue.
its
Docket
Motion
No.
20,
to
Set Aside
23.
On
May
Default
11,
2011,
Plaintiff filed a motion for leave to file a supplemental brief
in further support of Plaintiff's response to Defendant's motion
to
set
aside
default
and
to
change
venue.
Docket
No.
24.
The
analyzed
first
in
for
Court
to
Court addresses these motions below.
II.
Defendant's
order
to
Motion
determine
to
whether
DISCUSSION
Change
Venue
it
necessary
is
is
this
rule on any other motion.
The Plaintiff's Motion to
Opposition
to
Motion
to
Strike Defendant's Memorandum in
Certify
Entry
of
Default
is
analyzed
next because of the motion's potential effect on the analysis of
Defendant's
Motion
to
Set
Aside
Default.
opposition is stricken from the record,
that
Defendant may have
raised
the Court when deciding whether
in
it
If
memorandum
in
any meritorious defenses
may not
there
the
is
be
considered by
"good cause"
to grant
Defendant's Motion to Set Aside Default.
Defendant's Motion to Set Aside Default will be considered
next
since
the
Plaintiff's Motion
Certification of
Default
Judgment
for Default
as
Final
as
Judgment and
to
Counts
I
for
and
III of the Complaint will require no analysis from this Court if
Defendant's Motion to Set Aside Default is granted.
hand,
On the other
if Defendant's Motion to Set Aside Default is denied,
the
Plaintiff's
motion
analysis
the
by
regarding
Court.
default
Finally,
the
judgment
Court
will
also
will
require
consider
Plaintiff's Motion for Leave to File Supplemental Brief.
A. Motion to Change Venue
1.
Personal Jurisdiction
a.
Since
states
the parties
and
subject
Standard of Review
in
this
the
is
for
matter
demand
an
amount
$75,000,
case
basis of diversity of citizenship. U.S. Const,
art.
Ill,
U.S.C.
aside default
transfer
venue,
However,
in
Defendant
its motion
does
jurisdiction over its person.
objection
to personal
of
the
Federal
contend
jurisdiction
Rules
to
set
that
this
on
the
§ 2;
28
Court
and
lacks
Although Defendant has raised the
the default and transfer venue,
12 (b)
satisfied
different
than
greater
of
this
1332.
is
citizens
for
§
jurisdiction
case are
of
in
its
motion
to
set
aside
rather than a motion under Rule
Civil
Procedure,
the
Court
will
nonetheless address the merits of Defendant's contention.
When personal
the
plaintiff
possesses
jurisdiction is
bears
personal
the
jurisdiction
evidence. Mylan Labs.,
Cir.
1993);
Combs v.
burden
challenged by the defendant,
of
by
proving
a
the
preponderance
Inc. v. Akzo, N.V.,
Bakker,
that
886 F.2d 673,
2 F.3d 56,
676
court
of
the
59-60
(4th
(4th Cir.
1989).
The plaintiff must make a prima facie demonstration of personal
jurisdiction when the court decides personal jurisdiction based
solely on
"motion papers,
allegations
in
Geometric Ltd.,
886
F.2d
showing,
at
the
supporting
complaint."
561 F.3d 273,
676).
"the
In
court
memoranda,
Consulting
276
a
all
the
y.
(citing Combs,
plaintiff's
construe
and
Corp.
Eng'rs
(4th Cir. 2009)
evaluating
must
legal
prima
relevant
facie
pleading
allegations in the light most favorable to the plaintiff,
credibility,
and
existence
jurisdiction."
where
of
"the
draw
the
defendant
present
favorable
Combs,
provides
essential for jurisdiction,
dismissal,
most
886
inferences
F.2d
evidence
at
'the plaintiff must,
sufficient
evidence
to
for
676.
which
assume
In
the
cases
denies
facts
under threat of
create
a
factual
dispute on each jurisdictional element which has been denied by
the
defendant
and
on
evidence.'" Colt Def.,
2:04cv258,
2004 U.S.
22,
(quoting
2004)
Leasing Corp.,
Court
737
demonstration
of
L.L.C. v.
Heckler & Koch Def.,
Indus.
Carbon Corp.
v.
Supp.
that
925,
personal
made
although
at
has
trial.
Moore's Federal Practice SI 12.31
See
2
(3d ed.
inc.,
(E.D. Va.
Va.
made
at
1990)).
a
this
stage
2011).
Wm.
Oct.
If
this
facie
in
the
jurisdiction
determinations
James
No.
Equip.
prima
if it has personal
factual
presented
Equity Auto &
(W.D.
jurisdiction
this
matter,
926
Plaintiff
over
be
has
at *29-30
the Court will proceed as
may
defendant
LEXIS 28690,
case,
contrary
the
Dist.
F.
determines
which
Moore
to
the
et
al. ,
Personal jurisdiction is determined by utilizing a two-part
test.
First,
the long-arm statute of
the applicable state must
authorize the exercise of personal jurisdiction,
and second,
the
application of the long-arm statute must be consistent with the
Due
Process
Clause
of
States Constitution.
arm
portion
section
of
Fourteenth
Geometric,
the
8.01-328.1
the
of
Amendment
561 F.3d at 277.
analysis,
Virginia's
the
United
As to the long-
long-arm
the Code of Virginia,
court may exercise personal
to
statute,
provides
that
jurisdiction over a person,
"[a]
who acts
directly or by an agent, as to a cause of action arising from" a
number
of
enumerated
business
in
this
services
or
things
activities,
including
Commonwealth,"
in
this
•[transacting
"[c]ontracting
Commonwealth,"
and
to
any
supply
w[c]ausing
tortious injury by an act or omission in this Commonwealth." Va.
Code
§
8.01-328.1(A).
The
long-arm statute
an act is committed in the Commonwealth if
computer
or
computer
network
located
in
also
specifies
that
the person "us[es]
the
Commonwealth."
a
Va.
Code § 8.01-328.1(B).
The long-arm statute further provides that
"[w]hen
jurisdiction
over
section,
only a cause of action arising from acts enumerated in
this
section
may
be
a
person
asserted
is
against
based
him."
solely
Va.
upon
Code
§
this
8.01-
328.1{C) .
Virginia's
personal
long-arm statute has been determined
jurisdiction
to
the
extent
permissible
"to
under
extend
the
due
process clause,
[so that]
constitutional
Young v.
the
Geometric,
New Haven Advocate,
Moreover,
for
inquiry."
the statutory inquiry merges with the
jurisprudence
Fourth
nonresident which amounts
F.3d
315 F.3d 256,
of
Circuit
561
the
has
United
noted
to
at
that
«a
2002)).
Court
States
(citing
(4th Cir.
261
277
Appeals
of
single
'transacting business'
act
by
a
in Virginia
and gives rise to a cause of action may be sufficient to confer
jurisdiction upon
contractual
[Virginia]
relationship
telephone and mail.
40
(4th
Cir.
courts," even if that act is a mere
conducted
English & Smith v.
1990)
(quoting Danville
Fancy
Kitchens,
Inc.,
Corp.
of Am.
Hollywood Brands,
Cir.
v.
entirely
238
S.E.2d
out-of-state
via
901 F.2d 36,
38-
Metzger,
Plywood Corp.
800,
Inc.,
802
(Va.
696
v.
Plain
1977));
F.2d
311,
&
Peanut
314
(4th
1982).
With
respect
requirement
'minimum
the
due
satisfied
is
to
if
contacts'
maintenance of
the
with
(quoting Int'l
Shoe Co.
order to prove that
forum
state,
"'purposefully
forum'
and
the
the
prong,
the
defendant
has
forum
not
state
such
offend traditional
justice.'" Geometric,
v.
Wash. ,
due
326 U.S.
process
"sufficient
that
'the
notions
of
561 F.3d at 277
310,
316
(1945)).
In
the defendant had minimum contacts with the
plaintiff
directed
that
the
the
suit does
fair play and substantial
process
his
must
prove
activities
plaintiff's
10
cause
that
at
the
of
action
the
defendant
residents
of
the
'arise[s]
out
of
those
Burger
activities."
King
Corp.
Furthermore,
haled
Corp.
has
into
v.
the
v.
in
sufficient
a
U.S.
286,
at
277
(quoting
462,
U.S.
state.
297
472
(1985)).
for
exist
anticipate
World-Wide
(1980).
test
contacts
F.3d
"reasonably
forum
three-part
minimum
471
must
the
444
Woodson,
561
Rudzewics,
defendant
court"
utilized
Geometric,
Volkswagen
The Fourth Circuit
determining
for
being
the
whether
defendant
subjected to personal jurisdiction in the forum state:
to
be
« Ml) the
extent to which the defendant purposefully availed itself of the
privilege of conducting activities in the State;
(2) whether the
plaintiffs'
claims arise out of those activities directed at the
State;
(3)
and
would be
278
whether
constitutionally
(quoting ALS Scan,
293 F.3d.
the
707,
712
Inc.
v.
(4th Cir.
argues
pressing
Defendant
Defendant
Puerto
in
argues
Rico
corporation,
Puerto
that
including
implying
this
Defendant's
instead alleges
jurisdiction
Digital Serv.
that
with
In
Geometric,
jurisdiction
561
F.3d at
Consultants,
Inc.,
Analysis
of
forum.
personal
2002)).
jurisdiction because
the
of
reasonable.'"
b.
Defendant
exercise
that
its
Court
lack
motion
Plaintiff
Rico
for
Plaintiff has
is
personal
meaningful
of
lacks
contact
to
transfer
subject
several
First,
other business
relations
Puerto
majority
interest
in
that
venue
Puerto
Rico
11
to personal
reasons.
a
in
venue,
a
would
in
Rico
also
be
proper.
Second,
Defendant
services
of Defendant
in
argues
that
Plaintiff
sought
the
Puerto Rico and fully negotiated and
executed the contract between Plaintiff and Defendant in Puerto
Rico.
out
Finally,
of
Defendant implies
Defendant's
performed
all
activities
services
required
that the claim does not arise
in
Virginia
under
the
since
Defendant
contract
in
Puerto
Rico.
Plaintiff
jurisdiction
argues
over
that
this
Defendant
Court
since
the
can
exercise
Defendant's
within the reach of Virginia's long-arm statute,
is not violated.
Plaintiff
executed
the
any
statute,
Code
Defendant
this
Commonwealth"
Virginia.
that
order
to
§
as
since
Code
the
by
§
is
and due process
Defendant
Virginia,
provided
to
its
which
in
and
constituted
Virginia's
Second,
long-arm
Plaintiff
argues
services
or
things
in
contract
required
Defendant
to
located
in
computer
8.01-328.1(A)(2).
without
negotiated
supply
using
accessing
Virginia,
complete
in
that
8.01-328.1(A)(1).
"contract[ed]
Defendant's
Chesapeake,
contract
contract
Va.
argues
business"
that
the
first
final
"transacting
perform
conduct
In regards to the reach of Virginia's long-arm
statute,
va.
personal
of
Plaintiff
with
performing an act within the forum since
also
computer
AHM's
downloading
contract
servers
servers
in
servers,
in
from
Plaintiff,
constitutes
"[u]sing a computer or
computer network located in the Commonwealth"
12
the
argues
constitutes an act
in Virginia. Va. Code § 8.01-328.1(B). Finally, Plaintiff argues
that
Virginia's
long-arm
statute
reaches
Defendant
due
to
Defendant's tortious interference with Plaintiff's contract with
AHM.
Va.
Code §
8.01-328.1(A)(3).
Plaintiff also argues that due process
is not violated and
the three-part test set forth in Geometric is satisfied.
First,
Plaintiff argues that "defendant purposefully availed himself of
the privilege of conducting activities in the State" by reaching
into Virginia to negotiate modifications to the contract and by
forwarding
the
Virginia
so
contends
that
training
in
that
final
that
draft
Plaintiff
Defendant
order
Defendant was
to
of
could
sent
contract
execute
team
perform
required
the
the
to
to
it.
leaders
Plaintiff
in
also
to
Virginia
for
with
contract
access
Plaintiff
Plaintiff
and
computer
servers
located
in Virginia on a daily basis in order to fulfill its obligations
under the contract.
"arise
out
of
Plaintiff's
Second,
those
claims
activities
of
reasonable"
being
haled
activities
personal
since
into
directed
at
revolve around Defendant's
its contract with Plaintiff.
exercise
Plaintiff asserts that its claims do
Finally,
jurisdiction
should
court
Virginia
and contacts
in
have
be
13
since
alleged breach of
constitutionally
reasonably
because
in Virginia stemming
with Plaintiff.
State"
Plaintiff argues that "the
would
Defendant
the
of
anticipated
its
business
from its
contract
The
Court
finds
that
Plaintiff's
arguments
satisfy
the
prima facie showing needed to demonstrate this Court's personal
jurisdiction
facts
the
over
Defendant.
supporting personal
evidence
standard,
Plaintiff
has
clearly
asserted
jurisdiction under a preponderance of
and
this
Court
must
"construe
all
relevant pleading allegations in the light most favorable to the
Plaintiff,
assume
credibility,
and
inferences
for
existence of
jurisdiction."
at
676.
Court
the
exercise
without merit.
most
favorable
886
F.2d
this
personal
While Defendant's
subject to personal
the
Defendant's allegation that
For the above reasons,
cannot
draw
jurisdiction
claims
that
Combs,
over
Defendant
Plaintiff
is
is
also
jurisdiction in Puerto Rico are not grounds
upon which this Court could conclude that personal
is improper in this
forum,
jurisdiction
such allegations may factor into the
determination of whether transfer of venue is warranted.
2.
a.
In
its
Motion
Defendant requests
States
1391
to
Standard of Review
Set
Aside
Default
and
to
Change
Venue,
that this Court transfer venue to the United
District
Court
of Title 28
of
is proper
Transfer of Venue
for
the District
of
Puerto
Rico.
the United States Code provides
for a diversity of citizenship action in a
Section
that venue
"judicial
district in which a substantial part of the events or omissions
giving rise to the claim occurred" or in a "judicial district in
14
which any defendant is subject to personal jurisdiction at the
time
the
1404(a)
action
both
venue
but
§
serve
in
as
or
1404(a)
for
U.S.
612,
Carefirst
Cir.
Urgent
2002)
otherwise,"
the
from
(noting
that
transfers
are
L.L.C.,
is
no
this Court,
under
indication
any
justice."
In
the
1404(a).
civil
This
action
305
253,
its
under
any
of
parties
28 U.S.C.
order
district where
to
and
Barrack,
Inc.
other
a
when
personal
Since
in
transfer request
district
district
in
(4th
laid venue
or
if the transfer is
witnesses,
v.
suggests
technically proper).
improperly
has
255-56
language
1406(a)
section allows
"to
plaintiff
Van Dusen v.
F.3d
is
contrast,
of Md. ,
Plaintiff
where it might have been brought"
convenience
in
the Court will analyze Defendant's
Section
transfer
that
dismissal,
Carefirst
"[a]lthough
proper
of
of
sections
in which venue
whereas,
also
transfer
both
instead
venue privilege."
Ctr.,
the
"Although
that
Section
the United States
forums
premise
See
1391(a).
of
transfer
jurisdiction is lacking but venue is
there
28
§
authorize
laid,
(1964);
Care
which
transfer
on
634
u.S.C.
Title
allow
improperly
operates
28
circumstances.
to
properly exercised his
376
of
statutes
designed
provides
wrongly
1406(a)
different
broadly
1406(a)
§
commenced."
and Section
Code
were
is
the
court
to
division
"[f]or the
interest
of
court
a
1404(a).
determine
the
cause
of
whether
action
15
the
transferee
is
"might have been brought,"
the Court must determine whether plaintiff's
claims
been brought in the transferee court initially.
Inc.
v.
Micromuse,
Inc.,
316
F.
Supp.
2d
could have
Agilent Techs
322,
325
(E.D.
Va.
2004). The phrase "might have been brought" has been interpreted
to mean that
"when a suit is commenced,
sue in that district,
Hoffman v.
316
F.
Blaski,
Supp.
whether
claims
independently of the wishes of defendant."
363
2d at
plaintiff has a right to
U.S.
324
could
335,
344
(1960);
(noting that
be
brought
court must
in
decision
in
to
2d 824,
Douglas,
transferee
transfer venue
One Beacon Ins.
Supp.
the
Co.
828
Inc.,
v.
(E.D.
806
exercising
this
factors
to
include
"'(1)
convenience
obtaining
of
the
compulsory
Supp.
the
of
familiarity
interest
of
of
(5)
at
with
justice.'"
to
access
attendance
court's
the
parties
decided
If the claims could have
the subsequent
discretion
of
591
witnesses;
interest
in
in
One Beacon Ins.
312
factors
(2)
the
cost
of
having
law;
F.
of
local
cases,
and
In
several
availability
diversity
Co. ,
1992)).
the
F.
Hunter
These
(3)
the
(6)
v.
proof;
(4)
applicable
16
of
court.
312
consider
venue.
sources
witnesses;
the
Corp.,
Va.
will
transfer
and
home;
(E.D.
Court
to
the
the
(citing Verosol B.V.
582,
before
initially,
the
2004)
whether
process;
controversies
Va.
discretion,
ease
in
court
JNB Storage Trailer Rental
F.
determine
is
court
first determine
transferee
considering whether to transfer venue).
been brought
See also Agilent,
(7)
Supp.
the
the
2d at
828
(quoting BHP mt'l Inv.,
Supp.
is
2d 493,
also
498
Inc.,
105 F.
transfer venue,
Va.
2000)).
Plaintiff's choice of forum
substantial
given
(E.D.
inc. v. Online Exch.,
weight
in
and
«[i]t
is
well
a
court's
settled
that
decision
a court
to
should
rarely disturb a plaintiff's choice of forum unless the balance
of
hardships
Servs.,
clearly
Inc.
v.
favor
Ralsky,
transfer
F.
203
.
2d
Supp.
.
.
."
601,
Verizon
623-24
Online
{E.D.
Va.
2002).
b.
First,
the
Court
must
Analysis
consider
whether
the
United
States
District Court for the District of Puerto Rico is a forum where
the
claim
"might
commenced.
Since
have
the
been
brought"
parties
are
when
citizens
of
the
action
different
and the demand is for an amount greater than $7 5,000,
States
has
District
subject
matter
citizenship.
in
Puerto
resident
Court
for
the
jurisdiction
Additionally,
Rico
since
defendants
with
F.
Supp.
principal
Def.'s
place
Mot.
Therefore,
2d
to
804,
of
Set
on
personal
"[g]eneral
their
the jurisdiction," LG Elecs.
131
District
Aside
Puerto
basis
of
jurisdiction
is
jurisdiction
place
of
states
the United
Rico
clearly
diversity
of
also proper
exists
over
business
in
Advance Creative Computer Corp.,
(E.D.
business
the
principal
v.
813
of
was
is
Va.
in
Default
2001),
Puerto
and
to
and
Rico.
Change
Defendant's
Compl.
f
2;
Venue
SI
1.
the United States District Court for the District of
17
Puerto Rico appears
to be a
forum where
the claim
"might have
been brought" for purposes of transferring venue under 28 U.S.C.
1404(a).
Second,
District
the Court considers the fact that the United States
Court
Plaintiff's
for
the
choice
of
Eastern
forum.
District
This
of
choice
Virginia
will
be
is
given
substantial weight and will not be disturbed unless the balance
of the remaining factors weighs in favor of the Defendant.
In the
first instance,
choice of forum is
the
the Court observes
that
Plaintiff's
Plaintiff's principal place of business,
location where
a
substantial
amount
of
the
events
and
giving
rise to this case occurred. The balance of the remaining factors
does not counsel in favor of the Defendant's requested transfer.
First,
addressing
Plaintiff
weighs
in
argues
favor
Plaintiff,
to
Defendant's
that
of
the
ease
argument
of
access
retaining venue
in
sources
proof,
of
proof
According
to
the majority of the documentation can be transported
Virginia
Arthur
to
Virginia.
or
exists
in
digital
form
"location is entitled to little weight."
&
regarding
R.
Miller,
ed.
2007)
("The
the
litigation
Federal
location
is
a
of
factor
Practice
records
that
and
and
therefore
15 Charles Alan Wright
Procedure
and documents
should
its
be
§
3853
relevant
considered
by
(3d
to
the
transferor court in determining the proper transferee forum on a
motion under
Section
1404(a)
of
18
Title
28
of
the United
States
Code
and
it
numerous
has
been
citations
in many
in
the
cases,
note
as
is
below.
illustrated by
However,
the
since
most
records and documents now can be transported easily or exist in
miniaturized
or
electronic
ubiquitous e-mail,
(citations
especially,
Moreover,
Plaintiff
example,
the
has
introduced
indicating that the bulk of the documentary evidence
is in Virginia.
PL's Resp.
to Def.'s Mot.
and
Venue
Downing
to
for
their location is entitled to little weight."
omitted)).
affidavits
form,
Change
Defendant also argues,
18;
to Set Aside Default
Second
in addressing this
Aff.
f
factor,
23.
While
that the ease
of access to sources of proof favors transfer of venue since the
witnesses
predominantly
are
located
in
Puerto
Rico,
this
argument is applicable to the second and third factors involving
convenience and cost of obtaining witnesses,
a result,
the Court
finds
that
factor
argues
that
one
not
factor one.
counsels
As
in favor
of
venue
is
denying the transfer.
Second,
necessary
Defendant
for
the
convenience
of
transfer
of
parties
and
the
Although Defendant lists at least nine witnesses
Puerto
Rico,
Plaintiff
party witnesses
Carolina.
Even
that
if
also
identifies
reside in Virginia,
both
parties
are
that reside in
approximately
New Jersey,
correct,
witnesses.
and
ten
non-
and North
witnesses
on
both sides will experience inconvenience in either jurisdiction,
a
transfer of venue
that merely switches
19
the inconvenience from
one
party
to
the
other
generally
will
be
refused.
15
Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
3849
(3d ed.
which
considers
witnesses.
counsel
2007). This logic also applies to the third factor,
As
the
a
result,
in favor of
Next,
cost
the
of
obtaining
factors
two
the
and
attendance
three
also
do
of
not
transfer.
availability
of
compulsory
retaining venue in Virginia as well.
process
favors
Plaintiff argues that seven
of the ten witnesses identified by Defendant are either parties
to
the case
Puerto Rico.
witnesses
or are
employees
of
Plaintiff
or
its
affiliate
Plaintiff also asserts that only two of Defendant's
could
not
be
compelled
to
testify
in
Virginia,
that their testimony would be immaterial to the case.
further
asserts
compelled
to
that
appear
none
in
of
its
Puerto
inconvenience
Virginia.
and
Consequently,
cost
of
this
non-party
Rico.
argument based on availability of
the
in
makes
compulsory process
their
factor
witnesses
also
Plaintiff
witnesses
Defendant
may
be
no
other
other
than
to
counsels
but
travel
to
favor
of
in
this Court retaining venue.
The Court must
interests
Defendant
decided
issues
in
of
in
also consider
having
argues
Puerto
Puerto
that
local
its
the parties'
controversies
interest
Rico
weighs
Rico
law
in
that
20
in
its
decided
having
favor
should
be
and
the
because
localities'
at
home.
controversy
there
determined
by
are
the
United States District Court
However,
law,
for the District
of
Puerto Rico.
according to the Complaint and Plaintiff's memoranda of
Plaintiff's
breach
of
contract
claim
and
claim
for
injunctive relief arose from Defendant's contractual obligations
to
be
performed
in
Virginia,
maintained by AHM in Chesapeake,
Resp.
23.
the
to
If
Def.'s
Mot.
to
Set
such an allegation
breach
of
Virginia.
Aside
is
contract
utilizing
claim
Compl.
Default
true,
computer
and
Virginia
brought
5 a 4-5;
Pi. ' s
Change
Venue
to
law will
by
servers
apply to
Plaintiff
since
"Virginia adheres to the principle that the law of the place of
performance
governs
questions
arising
in
connection
performance of a contract." Equitable Trust Co.
Management
Corp.,
514
Arkla Lumber and Mfg.
840,
842
Rico,
(1926)).
the
F.2d
Co.
565,
v.
court
if venue is
will
apply
transferor court would have applied.
37.
Since
this
was
Virginia,
albeit
Virginia
law will
arguably
by
a
workers
likely
(4th
Cir.
1975)
the
contract
apply,
factors
(citing
132 S.E.
transferred to Puerto
same
Van Pusen,
employed
the
Bratwursthaus
West Virginia Timber Co.,
Therefore,
transferee
567
v.
with
to
in
law
that
376 U.S.
at 632-
be
performed
Puerto
Rico,
five
and
the
six
in
and
support
denial of the motion to transfer venue.
Finally,
favor
of
factors
the
interest
Plaintiff.
aimed
at
"This
systemic
of
justice
factor
'encompasses
integrity
21
factor
and
also
weighs
public
in
interest
fairness.'"
Heinz
Kettler GMBH & Co.
669
(E.D.
v.
Razor USA,
Va.
2010)
Supp.
2d 627,
these two considerations,
avoiding
as
669-70.
to
inconsistent
local
well
citizens,
other
one
filed by
Mem.
635
avoiding
docket
in Supp.
of PL's Resp.
Info.
Servs.,
2006)).
660,
In examining
conflicts
already considered by
Defendant
of Mot.
2d
congestion,
unnecessary
currently pending in
the
Supp.
Equifax
Va.
F.
courts often look to judicial economy,
judgments,
factors
(E.D.
While the Court recognizes
this
750
(quoting Byerson v.
467 F-
L-L-C"
on
L.L.C.,
after
this
the burden
of
law,
the Court.
as
Id^ at
that there is a suit similar
Puerto
Rico,
action was
that
action was
initiated.
PL's
for Leave to File Brief in Further Support
to Def.'s Mot.
to Set Aside Default and to Change
Venue 3. As to the other considerations relevant to this factor,
the Court is unable to say,
the
action
However,
the
could proceed more
in light of
previous
factor
at this juncture,
would
factors
have
efficiently
or
in which district
more
seamlessly.
the Court's determinations with respect to
considered,
very
little
the
effect
outcome
of
on
Court's
the
this
seventh
ultimate
determination of the transfer issue.
As
a
result,
given
the
analysis
above,
the
balance
of
factors clearly weighs in favor of venue remaining in Virginia.
Therefore,
the
Court
DENIES
Defendant's
venue.
22
motion
to
transfer
B. Motion to Strike Defendant's Memorandum in Opposition
1.
Standard of Review
Before considering Defendant's Motion to Set Aside Default,
Plaintiff's
Motion
to
Opposition
must
raised
Defendant
by
considered
After
in
be
response.
in
filed
2011,
13;
Local
of
the
cause"
motion
whether
set
Rule
can
aside
default
in
arguments
memorandum
to
for
Memorandum
be
default.
judgment
2011
on
to file a
file its memorandum in opposition to
for default
Docket No.
Civil
determine
opposition
"good
Defendant did not
Docket No.
to
the
its
Defendant's
Defendant had until January 6,
plaintiff's motion
filing
analyzed
determining
Plaintiff
December 23,
Strike
judgment until
January 18,
2011.
17.
7 (H)
complaint,
of
all
this
Court
pleadings,
states,
n[a]fter
the
motions,
briefs,
and
filings of any kind must be timely filed with the Clerk's Office
of
the
Civ.
division
R.
opposing
7{H).
a
in which
Local
motion
the
case
is
pending."
Civil
Rule
7(F)(1)
"shall
file
a
after service." E.D.
Va.
Federal Rules of Civil
if
service
service
6(d),
to
is
be
made
made
5(b){2)(E).
Local Civ.
R.
Procedure adds
under
through
Rule
that
5{b)(2)(E),
means.
a
party
such
(11)
days
Rule 6{d)
to
which
Fed.
Local
and
brief
three days
Given the rules above,
Va.
within eleven
7(F)(1).
electronic
23
provides
responsive
supporting documents as are appropriate,
E.D.
of the
this period
allows
R.
Civ.
for
P.
Defendant's response to
Plaintiff's
motion
January
2011,
6,
for default
or
judgment was
fourteen
days
after
7(I)
provides
filed
the
2010.
an
extension of time relating to motions must be in writing and,
in
R.
Rule
than
for
general,
Civil
later
Plaintiff
motion for default judgment on December 23,
Local
due no
that
"requests
will be looked upon with disfavor."
7(1).
Rule
6(b)(l)
of
the
Federal
E.D.
Rules
of
Va.
Loc.
Civil
Civ.
Procedure
provides that the court may give extensions for filing for "good
cause."
Fed.
R.
Civ.
P.
6(b)(l).
Rule
6(b)(l)(B)
extension for good cause may be given
states
that an
"on motion made after the
time has expired if the party failed to act because of excusable
neglect."
filing
Nat'l
Fed.
had
R.
Civ.
already
Wildlife
(explaining
6(b)(l)(B).
passed,
Fed'n,
that
P.
"any
Rule
497
Since
6{b)(l)(B)
U.S.
871,
postdeadline
the
deadline
governs.
896-97
&
extension
Lujan
n.5
must
for
v.
(1990)
be
'upon
motion made,'
and is permissible only where the failure to meet
the deadline
'was the result of excusable neglect'" and n[a]fter
the time for filing has expired .
.
the
No
time
only
'upon
requesting
of
Defendant's
Memorandum
Certify
the
the
motion.'").
Entry
Court
of
in
an
.
the court
motion
extension
Opposition
Default.
to
of
.
was
.
. may extend
made
time
Plaintiff's
Therefore,
by
for
Atlas
filing
Motion
excusable
to
neglect
analysis is not relevant since Defendant failed to make a motion
24
pursuant
to
Procedure.
Rule
Fed.
6(b){l)(B)
R.
Civ.
P.
of
Based on these rules,
to
January 6,
outside
2011.
of
the Court,
the
its
Rules
the Court finds
Civil
that the deadline for
opposition memorandum was
deadline
of
Analysis
Since Defendant
the
on
no
later
than
filed its opposition memorandum
January
18,
2011,
without
leave
of
the Court GRANTS Plaintiff's motion to strike it from
record.
577-78
file
Federal
6(b)(l)(B).
2.
Defendant
the
See,
(E.D.
e.g. ,
Va.
2009);
2008 U.S. Dist.
Key v.
Robertson,
Rossman v.
LEXIS 78925,
at *5
626
F.
Lazarus,
No.
(E.D. Va.
Oct.
Supp.
2d
l:08cv316
7,
566,
(JCC),
2008).
C. Motion to Set Aside Entry of Default
1.
The
Court
must
Standard of Review
next
consider
aside entry of default. Rule 55(a)
Procedure
states,
affirmative
defend,
relief
is
a
enter
default
the party's
judgment
against
failed
to
Rule
default."
resulting
entered by the clerk pursuant
pursuant
has
to
55(b)(2).
whom
to
Fed.
from
to Rule
Rule
set
of the Federal Rules of Civil
party
sought
motion
a
plead
judgment
or
R.
such
55(b)(l)
55{b)(l)
Civ.
for
otherwise
and that failure is shown by affidavit or otherwise,
clerk must
Entry of
"[w]hen
Defendant's
the
P.
55(a).
"default"
may be
or by the court
states,
»[i]f
the
plaintiff's claim is for a sum certain or a sum that can be made
certain
by
computation,
the
clerk-on
25
the
plaintiff's
request,
with an affidavit showing the amount due-must enter judgment for
that amount and costs against a defendant who has been defaulted
for not appearing and who is neither a minor nor an incompetent
person."
Fed.
R.
Civ.
P.
55(b)(l).
Rule
55 (b) (2)
states,
«[i]n
all other cases,
the party must apply to the court for a default
judgment."
court
The
accounting,
may
determine
allegations,
or
investigate
Rule
55(c)
Fed.
R.
Civ.
Rule
55 (c)
P.
.
.
R.
v.
is
a
Wagman Constr.
matter
Corp.,
In considering whether
party
reasonable
has
less
F.3d
of
198,
Payne
204-05
{4th
truth
of
of
Civil
Procedure,
for good cause."
motions
largely
lies
made
under
within
the
Masonry & Fireproofing,
F.2d 249,
251
exists
to
(4th Cir.
set
1967).
aside default
a court should consider "whether the
the
action,
ex
an
determine whether
of
defense,
personal
whether
and
rel.
Cir.
the
Estate
2006).
it
acts
responsibility
the prejudice to the party,
dilatory
drastic."
383
conduct
55(b)(2).
Rules
Consol.
meritorious
promptness,
defaulting party,
history
a
to
P.
which
"good cause"
judgment under Rule 55(c),
moving
Civ.
disposition
discretion of the trial judge."
Inc.
matters
Federal
"The
to
the
aside an entry of default
55 (c).
.
the
hearing
establish
other
Fed.
of
"[t]he court may set
a
damages,
to enter default judgment.
Under
hold
Calzada
The
of
the
whether there is a
availability
of
with
of
v.
criteria
sanctions
Brake,
must
439
be
"liberally construed in order to provide relief from the onerous
26
consequences
of
Arthur Murray,
in
defaults
Inc.,
an unpublished
also noted that
reserved
for
and
default
816 F.2d 951,
decision,
judgments."
954
a panel
(4th Cir.
of
the
"the extreme sanction of
only
cases
where
the
Lolatchy
1987).
v.
Although
Fourth Circuit has
judgment by default
party's
is
noncompliance
represents bad faith or a complete disregard for the mandates of
procedure
and
de Venez.
v.
(4th Cir.
1993)
has
"repeatedly
also
the
disposed
Inc.
v.
of
Parada Jimenez,
the
trial
court."
989 F.2d 494,
expressed
a
strong
Mobil
Oil
1993 WL 616863,
(unpublished table decision).
general matter,
be
authority
Co.
at
*3
The Fourth Circuit
preference
that,
as
a
defaults be avoided and that claims and defenses
of
on
Hoover
their
merits."
Universal,
Inc.,
Colleton
616
F.3d
Preparatory
413,
417
Acad.,
(4th
Cir.
2010).
2.
In
aside
order
to
default
consider
the
determine
judgment
"good
them in Defendant's favor.
The Court
defense
v.
Host
(citing
or
&
"has
Trueblood
cause"
Defendant,
factors
Lolatchy,
while
exists
the
Court
liberally
to
set
will
construing
816 F.2d at 954.
discretion to determine whether a proffered
L.L.C.,
v.
"good
Meritorious Defense
counterclaim
Cook,
whether
against
cause"
a.
Analysis
is
meritorious."
239
Grayson
F.R.D.
Shops
27
Bank
441,
of
of
Southside Va.
445
(E.D.
Va.
Tenn.,
Inc.,
32
2007)
F.R.D.
190,
196
(E.D.
Va.
meritorious,
the
would permit
a
establish
valid
Inc.
v.
1988)
a
Fodor
"allege[]
finding
for
is
(3d Cir.
meritorious
pointless.
Indigo Am.,
1,
Cir.
(1st
makes
little
2010)
the
defenses
728
of Defendant's
because
from
L.L.C.,
defense
the
default
597 F.3d
exists,
et
SI
55.70
(3d
the
claims
made
Court
will
Practice
look
at
default,
it
Moore
the
entry of
must
See 10 James Wm.
Federal
the
a
so would merely delay the inevitable.");
Therefore,
aside
Cir.
Currency,
relief
Big Impressions,
(4th
conclusionary
U.S.
("Where no meritorious
set
or
analysis
makes
Coatings,
proffering
consideration
defenses
or which would
for
in
be
"which
812
but
the
one
808,
denials
to
to
doing
Moore's
to
F.2d
simple
vital
be
Fiberglass
burden
The
v.
defense
only
$55,518.05
v.
Inc.
a
as
al.,
sense
843
onerous,
1984).
absence
must
Augusta
The
beyond
is
for
defaulting party
Corp.,
States
defenses
4
the
not
facts
meritorious
of
order
evidence
omitted).
United
195
of
Contracting
specific
192,
In
counterclaim."
defense
statements."
F.2d
proffer
(citations
meritorious
1963)).
ed.
by
2011).
Pinpoint
and the defenses to those claims which Atlas has asserted.
In
Count
I,
Plaintiff
seeks
a
declaration
that
it
was
entitled to terminate the contract between it and Atlas because
of Atlas'
breach,
Atlas
material breach,
and
for
a
any
declaration
reason.
a declaration that
that
Compl.
g[
28
Plaintiff
42.
is
Although
Plaintiff did not
not
the
indebted
Defendant
to
has
not
addressed
Defendant's
contract
cause
Defendant,
to
filings
first,
without
Mot.
defenses
Count
argue
not
with
was
to
that
I
one
contrary
to
Set Aside Default
the
most
Plaintiff
Defendant,
only
in
by
month
the
in
fact
notice,
terms
of
and to Change Venue S[
namely
to
was
terminating
it
whether
Defendant
the
without
the
cause
has
in
first
contract.
That
issue
is
breach
fact
at Ex.
1.
meritorious,
contract
by
depends
on
proffered
the
is
Def.'s
the
improper
to
Id.
to
notice,
with
Defendant did not breach prior
according
8;
I
the
contract
agreement.
to Count
Plaintiff
the
which
the
manner,
breached
terminating
Whether Defendant's proffered defense
that
orderly
evidence
more properly addressed
the
terminating
Plaintiff
that
the
in
the
analysis
of whether the Defendant has introduced a meritorious defense to
Count
II.
Court
Therefore,
determines
defense
to
the
that
Count
II,
Court
will
Defendant
then
turn
to
Count
alleged
Defendant
the
has
has
II.
a
If
the
meritorious
necessarily
also
introduced a meritorious defense to Count I.
In
three
the
posited
turn.
II
independent
between
has
Count
two
a
to
missing
target
Plaintiff's
ways
in
parties.
meritorious
According
failing
of
hire
to
the
the
which
The
Complaint,
deadlines,
and
Atlas
Court
defense
requisite
Complaint,
breached
will
to
number
address
each
Atlas
of
the
of
alleges
contract
whether
these
materially
performing
29
Plaintiff
Atlas
claims
in
breached
by
qualified consultants,
the
contract
poorly.
Compl.
I 15.
After examining Atlas'
and to Change Venue,
Docket No.
text
itself
of
the
motion
Pinpoint's claims.
believes
this
transferred
Atlas'
venue
to
the
is
Motion to Set Aside Default
15,
the Court concludes that the
proffers
no
meritorious
defenses
to
response merely asserts reasons why it
improper
District
of
and
Puerto
why
the
Rico.
case
be
assertions
Such
should
do
not address the merits of Plaintiff's lawsuit.
The
motion
does
state
that
contract was erroneous because
Pinpoint's
"no just
termination
cause
existed."
alone were the sole argument proffered by Atlas,
be
unable
However,
Venue
to
incorporates
for
is
a
suit,
Plaintiff's
As
that
to
that
to
1
from Atlas
Atlas
meritorious
Set
In
to
existed.
Default
that
"no
1
Atlas'
Pinpoint
asserts
defense
Aside
Exhibit
to
and
to
Change
just
cause
motion,
declaring Atlas'
several
this
the Court would
evidence
as
termination.
Pinpoint's
Pinpoint
allegation
for
that
intent
counterarguments
scrutinized
the
and
project
Although
respect
Atlas
failed
forty-five consultants,
unreasonably
decide whether
with
a
If
the
to
claims.
requirements.
not
Motion
the project with
proposed
that
Exhibit
the
letter
file
staff
conclude
Defendant's
existed"
which
to
of
constantly
the Court
or
not
it
to
the
first
the
is meritorious
30
of
candidates
this
that
the
it
the
Atlas
staffing
defense,
because
breach,
adequately
letter claims
changed
considers
claim
the
to
it need
concludes
Court
need
not
look further than the
Complaint.
contract
to
It
perform
the
the
for
to
merely
subsequently
clear
appears
than
the
While
facts
contract,
terms
consultants
the
rates
the
order
of
pursuant
consultants
of
affect
an
in
charged
argument
of
number
forty-five
may
as
the
that
making
execution.
the
that
forty-five
It
developed
of
the contract attached to the
influences
rather
contract
interpretation
hire
contract.
hired
of
altogether
Atlas
contract,
mandatory
and
not
require
consultants
to
is
terms
the parties
the
initial
Court's
matter
the
contract does not appear to mandate forty-five consultants.
As
to Pinpoint's
deadlines,
such
conduct
alleged
"day
to
Default
of
letter
day"
of
Ex.
could
Pinpoint
the Court
indicates
occurred,
changing
scrutiny
Court
the
second allegation
of
and
consultants.
further
facts
conclude
whether
such
permissible
of missed target deadlines
Lastly,
allegation,
as
of
the
to
the
be
under
and
would
the
Pinpoint's
criteria"
and
Mot.
be
alleged
to
from
excessiveU"
to
Set
Aside
needed before
behavior
contract,
defenses
if
at
on
the
this
this
part
point,
to the allegation
is without any merit.
Pinpoint's
contract,
reasons
deadlines,
attributed
Def.'s
that Atlas'
missed target
missed
"consistent[]
While
was
the
requirements
Pinpoint's
cannot conclude
performance
also
"staffing
potential
1.
could
that
that Atlas
third
given
provided
31
the
by
allegation
vague
Atlas
nature
in
of
of
response
poor
this
to
allegations
the
one
and
allegation
fully
of
recognizes
letter
and
Lolatchy,
Count
816
II
defense
its
the
F.2d
the
954,
completely
Count
I,
Count
III,
interfering with
Unlike
Count
Atlas'
by
and
say
that
the
Atlas
the
in
apply
Atlas'
did
defenses
not
to
to
Atlas'
breach
and
is also plausibly meritorious.
Plaintiff
the
when
favor,
Consequently,
it
this
Court,
Defendant's
that
to
Court
in
accuses
Atlas
of
tortiously
the Amended Contract between Plaintiff
II,
Motion
While
vague,
unmeritorious.
asserting
Pinpoint breached first,
In
cannot
easily
well.
provided
are
liberally
could
as
defenses
memorandum
at
above
performance
defenses
are
to
discussed
poor
that
in
construing
two
Court
Set
is
Aside
unable
to
Default
construe
and
to
any
and AHM.
aspect
Venue
Change
of
or
memoranda as asserting a meritorious defense to this Count.
As
II
and
factor
aside
a
result
Atlas'
does
of
lack
not
Atlas'
of
concerning
regarding
counsel
in
Counts
Count
of
favor
III,
against
or
I
the
and
first
setting
default.
The
prompt
Court
in
promptness
each
defense
clearly
b.
and
allegations
is
next
Reasonable
considers
responding
to
is
determined
evaluated
"in
occasion."
United
whether
the
at
light
States
Promptness
Defendant
entry
the
of
of
default.
discretion
the
v.
32
facts
Moradi,
was
of
and
673
the
reasonably
Reasonable
trial
judge
circumstances
F.2d
725,
727
of
{4th
Cir.
1982).
default
entry
must
of
claim of
v.
" (A
party
act
with
default
a
and
Airways
to
set
aside
reasonable promptness
provide
meritorious
Pan Am.
attempting
underlying
defense.'"
Corp.,
130
F.
in
entry
responding
facts
in
Wainwright's
Supp.
an
to
support
Vacations,
2d 712,
718
(D.
of
the
of
a
L.L.C.
Md.
2001)
(citation omitted).
In
the
response
from
to
present
entry
Defendant
filed
four
however,
motion
days
default
and
of
default
a
until
motion
reasonably
for
In
month
nine day delay
in
by
filing
default
Thus,
the
responding
a
venue
judgment
of
a
Court
to
of
to
vice
two
nine
filed
was
set
days
to
set
that
to
after Plaintiff
was
Judgment,
entered
response
to
by
Defendant
the
Court.
Plaintiff's
responded
Because
motion
for
33
after
aside
to
be
respond
filed a Motion for
before
default
Defendant's
default
of
could also be
Although Defendant did not
Default
aside
Defendant's
considered reasonably prompt.
the entry of default until
did,
days
considered
default
was
Plaintiff's
within
and
in
Court
Defendant
to
concludes
entry
the
hac
motion
motion
default
prompt
by
pro
promptness
change
entry
received
admission
reasonable
to
reasonably
entered default.
Wainwright's,
after
prompt.
for
clerk
judgment
was
Nothing was
motion
the
with
motion
one
a
after
default.
Defendant
default.
default
Plaintiff's
entry
of
respond
for
case,
judgment
promptness
judgment
should
in
be
liberally
construed
in favor of
Court
Courts
when
in
is
have
the
55.70
a
for
timely
10
(3d
of negligence,
in
its
to
its
to
this
factor
default
2011).
failure
Moore
When
to
Defendant
was
Wm.
whether
failure
deny
James
ed.
consider
manner.
discretion
party's
excusable
must
attributable
negligence.
SI
also
responsible
Complaint
favor,
counsels
Personal Responsibility of Defaulting Party
ultimately
failure
Defendant's
setting aside default.
c.
The
in
to
setting
answer
obtain
aside
the
al. ,
Moore's
party's
determining whether
to
set
local
this
counsel.
of
the
default
result
Federal
default
the Court may consider whether
that
entry
or
is
Plaintiff's
contends
intentional
et
Defendant
was
of
Practice
the
result
the negligence was
aside
entry of
default.
Id.
In
the
"agreed to
No.
15,
present
case,
take
the case"
10.
However,
SI
Defendant
but
alleges
"failed to
Defendant
"take
the
Brief
case"
and
was
they
served with
exhibit
attorney
contained
and
an
No.
26)
submitted an
Defendant
were
aware
(Docket
of
an
the
then
Plaintiff's
email
attorney
that
later
they
counsel
it
Id.
Defendant's
to
Docket
in
never
weeks
at
Ex.
to
did
that
before
2.
Puerto
contact
a
to File a
demonstrated
against
attempted
34
that
Complaint.
between
counsel
admitted
for Leave
local
exhibit
proceedings
local
follow through."
Response in Opposition to Plaintiff's Motion
Supplemental
that
The
Rico
become
local
counsel
2010,
and
she had
this
of
Defendant.
Defendant's
spoken with
matter."
Ex.
Plaintiff's
local
a
for
in
this
Motion to
order
factor
of
if
dated
Rico
"a
Defendant
timely
in
referenced
favor
of
was
failed to
responsive
19,
that
ago about
clearly
and Defendant
a
November
few weeks
aware
obtain
pleading.
denying
evidence;
(2)
defaulting
party's
used
by
the
Vick
v.
Wong,
v.
As
Defendant's
2008
non-defaulting
party
delay
made
WL
a
ability
to
proceed
determining prejudice,
prejudice
325,
1944033,
to
330
at
trial
the
(3)
to
are
or
to
present
for
Va.
(E.D.
Va.
given
2009)
2008
May
present
1,
is
non-
the
non-
(4)
fraud.'"
U.S.
Dist.
2008)).
most
and
weight
insufficient
Id.
was
(quoting
evidence
the
party.
a
(1)
some
the
and
commit
inconvenience
35
default]:
discovery;
(E.D.
non-moving
prejudiced,
hampered
3:07-CV-760,
*4
party
the
party
collude
No.
and mere
to
trial;
to
by
was
difficult
complete
Inc.,
non-moving
more
with
to
F.R.D.
of
it
party
Cos. ,
[caused
non-defaulting
proceed
263
TJX
Party
ability
ability
constitute
the
defaulting
The
35839,
to
to Non-Moving
the
for
party
LEXIS
it,
file
the
whether
defaulting
Burton
26.
counsels
impossible
its
Puerto
attorney
No.
Prejudice
determine
examine
it
to
was
Set Aside Default.
MXTo
made
Docket
email
in
the Virginia
2,
d.
courts
attorney
action against
counsel
result,
The
The
the
in
to
Furthermore,
delay
of
only
a
few
months
generally
prejudice to the non-moving party.
Plaintiff
has
decision
to
by
a
on
the merits.
have
to
analysis,
in
the
if
set
aside
the
Aside Default.
default
also has
presenting
two
most
Court
Lolatchy,
demonstrated
Plaintiff
difficulty
trial,
not
Therefore,
that
and
not
this
it
or
would
let
be
the
that
in
proceed
it would
proceeding
the
Defendant's
factor weighs
prejudiced
case
difficulty
factors
grant
constitute
816 F.2d at 953.
to
evidence
to
not
demonstrated
important
were
does
prejudice
Motion
to
Set
in favor of setting
aside default.
e.
Courts
often
look
dilatory action on
to
determine
warranted.
dilatory
default.
one
to
also
of
fail
Plaintiff's
but
is
Lolatchy,
Defendant
Defendant's
file
Complaint,
to
Certify
tardiness
fault
953.
action
to
are
other
entry
at
Court
at
Entry
in
F.3d
the
which
failed
aside
the
a
there
instances
the defaulting party as
616
F.2d
dilatory
to
of
setting
solely
816
Defendant
Motion
the part
blameless,
instance
whether
Colleton,
action
is
to
whether
See
defendant
History of Dilatory Action
of
will
this
timely
the
the
attorney
and
the
favor
setting
has
Not
"Memorandum
36
an
in
entry
a
opposition
than
only
did
response
in
file
filing
an
aside
had more
matter.
answer
Default"
is
if
in
of
default
However,
resulted
its
factor
418.
Defendant
in
of
a
of
to
of
in
default,
Opposition
timely
brief
manner.
led
to
Plaintiff's
Defendant
motion
has
knowledge
was
filed,
many
Defendant's
excuses
of
legitimacy
at
blameless
in
the
of
as
Pinpoint's
noted
lawsuit
above.
f.
Alternative
be
to
Neither party has
will
it,
certainly
such
as
associated
the
drastic
Defendant's
for
reimbursement
Plaintiff's
Defendant's
816
have
charged
F.2d
including
motion
motion
at
953
with
all
costs
attorneys'
Therefore,
this
to
to
("The
the
and
or
factor
Complaint
counsels
entry
that
are
of
in
set
but
respond.
the Court
brought
and
aside
for
expenses
counsels
to
default
before
Plaintiff's
strike
even
of
failure
attorney,
fees,
considering
factor
than
motion
with
conclude
Sanctions
suggestions
a
action
with
Set Aside Default.
any
Lolatchy,
court.").
cure
cannot
before
this
consider
to
delay,
less
Court
Although
delays,
suggested alternative sanctions,
response
been
Alternative
these
weeks
Therefore,
sanctions
imposed
the
brief.
dilatory
favor of denying Defendant's Motion to
could
for
best,
was
Defendant
its
strike
asserted
varying degrees
that
to
in
Plaintiff's
default.
example,
in
See
could
attendant
held
costs
to
contempt
favor
the
of
of
setting
"good
cause"
aside default.
g.
The
factors
Court
is
required
liberally and to
by allowing
Summary of
the party
to
to
Factors
construe
avoid the
proceed
37
all
"extreme
to
defend
of
the
sanction"
on
of
default
the merits.
While
all
of
many
set
the
of
factors
them
aside
do.
certainly
not
the
and
allow Defendant
action on
the merits.
GRANTED.
Because
reasons
weigh
For
default
Plaintiff's
do
Defendant's
default
motion
for
is
stated
Defendant's
favor,
above,
the
Court
will
proceed
to
motion
set
default
in
to
defend
this
to
set
aside,
judgment,
aside
the
and
default
Court
this
is
DENIES
case
will
be
allowed to proceed on the merits.
D.
Motion for Leave to File Supplemental
Brief
in Further
Support of Plaintiff's Response to Defendant's Motion to Set
Aside Default and Change Venue
On May
a
11,
2011,
Supplemental
to
Brief
Defendant's
Docket
new
No.
24.
obtain
desires
additional
reasons
because
undermines
The
new
counsel
used
to
Aside
come
to
local
to
claim
in
Court
counsel
are
a
of
a
for
and
good
inaccurate.
only
determine
aids
in
whether
the
the
cause
and
analysis
to
38
set
of
aside
that
Docket
new
No.
to
argue
should be
undermines
Docket No.
of
25.
information
failure
one
that
regarding
set aside
that
Defendant's
Venue.
brief
brief
representations made by Defendant.
regarding
File
Response
Change
Defendant
to
to
indicating
supplemental
alleges
to
supporting
by
motion
Leave
Plaintiff's
light
the
file
of
Default
to
why Defendant's
information
local
Support
indicated
Plaintiff
any
credibility of
Set
has
Plaintiff
denied
to
made
filed a Motion
Further
Plaintiff
representations
to
in
Motion
information
attempts
Plaintiff
to
the
default.
the
25.
obtain
factors
The
new
information does not change the decision of the Court concerning
Defendant's
DENIES
motion
to
Plaintiff's
set
aside
motion
for
default.
leave
Therefore,
to
file
a
the
Court
supplemental
brief.
III.
For
Motion
the reasons
to
Change
Defendant's
of
DENIES
stated above,
Venue,
Memorandum
Default,
GRANTS
GRANTS
Motion
Certification of Default as
and
DENIES
the Court
DENIES Defendant's
Plaintiff's
in Opposition
Defendant's
Plaintiff's
Complaint,
CONCLUSION
to
Motion
for
Final
Motion
to
Default
as
Plaintiff's
Motion
to
Set
Aside
Motion
for
I
Strike
Certify Entry
Judgment
to Counts
to
Default,
and
and III
Leave
to
of
for
the
File
a
Supplemental Brief.
The
Clerk
Order to all
IT
IS
SO
is
DIRECTED
counsel
of
to
send
a
copy
of
this
and
record.
ORDERED.
Mark S.
UNITED
Norfolk,
Opinion
Virginia
July 13 , 2011
39
STATES
Davis
DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?