United States District Court, S.D. New York
August 8, 2005.
ANOUCK LEPERE, individually, and as a shareholder and officer of DECIBELLE, INC., and in the right of DECIBELLE, INC., Plaintiff,
JONATHAN MALBIN, individually, and as secretary/treasurer and purported shareholder of DECIBELLE, INC.; DECIBELLE, INC.; and MALBIN MANAGEMENT, INC.; Defendants.
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
MEMORANDUM AND ORDER
1. After receiving Mr. Schulman's July 29 letter and Mr.
Osborn's August 2 letter, I held a telephone conference with Mr.
McNally and Mr. Osborn on August 8, and I made the following
statements and rulings.
2. I held a settlement conference on March 16, and several
follow-up telephone calls through March 23; the parties failed to
reach a settlement, but were going to continue negotiations on
their own. On June 14, defense counsel wrote to Judge Wood
seeking permission to file a motion to dismiss; Judge Wood did
not act on that letter, but her permission is not required for a
motion in lieu of an answer.
3. I was not aware of that letter, and I was not focusing on
the fact that the parties had ceased stipulating to extending
defendant's time to move or answer with respect to the amended
complaint. But I did sense that the parties were not going to
settle and that the case needed a scheduling order. On July 14
and 15, at my direction, my law clerks telephoned Mr. McNally,
faxed him a blank scheduling order, and told him to consult with
defense counsel about what dates should be filled in. On July 19,
Mr. McNally forwarded the blank scheduling order to defense
counsel along with an e-mail that said that he was available to
discuss it on July 21. However, Mr. Schulman's July 29 letter
informs me that, on some unidentified subsequent date: A colleague in my office, Derek McNally, called
defendants' counsel, to specifically advise that we
would not enter into the usual scheduling order with
them regarding discovery and the like, precisely
because defendants were in default,. . . .
In response to that advice of default, defendants'
counsel stated that they still were of the mind to
file their motion to dismiss certain claims in the
complaint. Counsel then requested an extension until
August 24 for such putative filing. We expressly
declined to agree to any formal or informal extension
of time, or to forgive defendants' nine-month long
4. The docket sheet shows the following. On July 27,
plaintiff's counsel filed a certificate that the amended
complaint had been served back in October 2004. On July 28,
plaintiff's counsel requested the Clerk's Office to certify that
the defendants had not filed an answer or otherwise moved.
Although not yet shown on the docket sheet, a deputy clerk did
sign the clerk's certificate on July 29.
5. There is a strong policy to have cases decided on the merits
rather than on default. In the above circumstances, I will vacate
the clerk's certificate of default provided that the defendants
serve and file an answer, or motion in lieu of an answer, by
August 26, 2005. I enclose a Scheduling Order with the dates I
discussed in my August 8 telephone conference.
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