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United States v. Diversified T.E.S.T. Technologies

September 20, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DIVERSIFIED T.E.S.T. TECHNOLOGIES, INC.; THOMAS P. SIMS, AND ANNELLE FRIERSON, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Plaintiff's motion for entry of a default judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. See Dkt. Nos. 14, 20. Defendants Sims and Frierson have submitted papers in opposition to that motion. See Dkt. Nos. 18-19.

II. BACKGROUND

Plaintiff commenced this action for a preliminary and permanent injunction and to reduce tax assessments to judgment on June 23, 2009. See Dkt. No. 1. Plaintiff served Defendants on July 23, 2009; and, therefore, their answers were due on August 12, 2009. See Dkt. Nos. 6-8.

In a "Notice to Plaintiff's Counsel" dated October 2, 2009, Magistrate Judge Peebles directed Plaintiff's counsel to file a request for clerk's entry of default against Defendants or a status report by October 7, 2009. See Notice Entry dated October 2, 2009.

In compliance with Magistrate Judge Peebles' directive, Plaintiff's counsel filed a status report on October 6, 2009, in which he stated that, on August 7, 2009, he had received, "in letter format, what appeared to be defendant's answer to the complaint." See Dkt. No. 10 at 1. Subsequently, on October 1, 2009, the Clerk's Office informed Plaintiff's counsel that Defendants had not filed their August 7, 2009 letter answer with the Court. See id. Therefore, on October 1, 2009, Plaintiff's counsel telephoned the offices of Defendant Diversified and spoke with Defendant Frierson. See id. During that conversation, Plaintiff's counsel "informed Ms. Frierson of the obligation to file an answer with the Court and that the August 7, 2009 letter answer was not in proper form in that it failed to respond to each and every allegation in the complaint." See id. "Ms. Frierson responded that she was not aware that an answer had to be filed and that she was relying on defendant Sims to take the lead in defending the matter." See id. Ms. Frierson also told Plaintiff's counsel that Defendant Sims had recently undergone surgery and was not expected to be back to work until the week of October 19, 2009, at the earliest. See id. Finally, Plaintiff's counsel and Ms. Frierson "discussed possible approaches to working out a resolution to the case and [Ms. Frierson] agreed to contact Defendant Sims in the hope that both she an [sic] Defendant Sims could speak with [Plaintiff's counsel] further on this matter." See id. Finally, Plaintiff's counsel contacted Ms. Frierson again on October 5, 2009, and "informed her that while she and Defendant Sims may proceed without an attorney, the corporation must be represented by counsel and that in her anticipated conversation with Defendant Sims, she should discuss the need to secure counsel to represent the corporation." See id. at 2.

Magistrate Judge Peebles held a telephone conference with Plaintiff's counsel, Defendant Sims and Defendant Frierson on October 29, 2009. See Minute entry dated October 29, 2009. At that time, Magistrate Judge Peebles advised Defendants Sims and Frierson that, because Defendant Diversified was a corporation, it could not proceed pro se in this action; therefore, Magistrate Judge Peebles directed that Defendant Diversified retain counsel by November 20, 2009. See id. Plaintiff's counsel advised Magistrate Judge Peebles that he had received a letter that he was construing as an answer to the complaint but that Defendants had not filed that letter with the Court. See id. Magistrate Judge Peebles directed Defendant Sims and Defendant Frierson to file that letter with the Court by November 13, 2009. See id. He also directed Defendants Sims and Frierson to file a letter with the Court with their contact information, including their addresses and telephone numbers. See id.

On November 20, 2009, Defendants Sims and Frierson faxed an IRS Form 2848 "Power of Attorney and Declaration of Representative" to the Court, in which they provided the address of Defendant Diversified, as taxpayer, and their addresses as representatives of the taxpayer. See Dkt. No. 11.

In a Text Notice to Plaintiff's counsel dated November 25, 2009, Magistrate Judge Peebles noted that Defendants had not complied with his directive to file an answer by November 13, 2009, nor had Defendant Diversified retained counsel by November 20, 2009. See Text Notice dated November 25, 2009. Therefore, Magistrate Judge Peebles stated that "Plaintiff's counsel may file any appropriate motion to the court regarding the failure of defendant Diversified T.E.S.T. Technologies, Inc. to retain counsel and defendants' non-compliance with the court's directive to file their letter/answer, which was served upon plaintiff's counsel but not filed with the court." See id.

On December 11, 2009, Plaintiff moved for entry of default, see Dkt. No. 12, which the Clerk of the Court entered on December 14, 2009, see Dkt. No. 13. By Notice to Plaintiff's counsel dated December 29, 2009, the Court directed Plaintiff's counsel to file a motion for default judgment against Defendants by January 26, 2010. See Text Notice dated December 29, 2009. In compliance with the Court's Text Notice, Plaintiff filed the pending motion for entry of a default judgment on January 26, 2010. See Dkt. No. 14.

On February 12, 2010, Defendants filed a motion for appointment of counsel. See Dkt. No. 16. Magistrate Judge Peebles denied with prejudice Defendant Diversified's motion for appointment of counsel and denied without prejudice Defendants Sims and Frierson's motion for appointment of counsel. See Dkt. No. 17.

The Court extended the period of time in which Defendants could respond to Plaintiff's motion for entry of a default judgment and gave the pro se Defendants permission to file their response in letter form. Defendant Frierson filed her response on April 6, 2010. See Dkt. No. 18. Defendant Sims filed his response, as well as a request that the Court consider appointing counsel on Defendants' behalf, on the same day. See Dkt. No. 19. Plaintiff ...


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