IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
December 12, 2005
WILLIAM R. CUNNINGHAM, ET AL., PLAINTIFFS,
POSNET SERVICES, LLC., DEFENDANT.
The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
This matter is before the Court on the Motion for Entry of Default filed by the Plaintiffs, William Cunningham and Cunningham Electronics Corporation, on October 24, 2005 (Doc. 8) and the Motion to Stay filed by the Defendant, Posnet Service, LLC, on October 27, 2005 (Doc. 11). The motion for entry of default is DENIED and the motion to stay is GRANTED IN PART.
The parties' dispute centers around their business and contractual relationships. On September 23, 2005, the Plaintiffs filed suit in state court and the matter was removed to this court on October 11, 2005. On September 27, 2005, the Defendant filed suit, presumably concerning the same matters, in the Northern District of Illinois.*fn1 As is the practice in this district, a presumptive trial month and scheduling conference were set upon removal. However, to date, the Defendant has not filed a responsive pleading and instead has filed the pending motion to stay.
In the Northern District, District Judge Samuel Der-Yeghiayan previously granted a motion to dismiss; however, the court then granted a motion to reconsider that ruling on November 30, 2005. As such, the Northern District currently is considering the motion to dismiss and a motion to transfer. A hearing is set for January 11, 2006.
On December 12, 2005, this Court held a telephonic status conference in which Attorney James F. Bennett appeared on behalf of the Plaintiffs and Scott J. Szala appeared on behalf of the Defendant. The Defendant represented to the Court that it expects a ruling from Judge DerYeghiayan on January 11, 2006
Motion for Entry of Default
Federal Rule of Civil Procedure 55(a) provides that when a party fails to "plead or otherwise defend as provided by these rules," the clerk shall enter the party's default. An entry of default is reviewed for an abuse of discretion and the entry is justified when a "defaulting party has exhibited a willful refusal to litigate the case properly." Davis v. Hutchins, 321 F.3d 641, 646 (7th Cir. 2003). While the Defendant has not filed an answer in this matter, this is not a case where the Defendant is completely ignoring this lawsuit. The Defendant had removed this matter to this Court, has filed a motion to stay, and a status report. The Defendant also has participated in a status conference. As such, an entry of default is not warranted at the time.
Motion to Stay
The Defendant seeks a stay in these proceedings pending resolution of the motion to dismiss and transfer that are before Judge Der-Yeghiayan. The Plaintiffs strenuously oppose any stay in this matter as they contend that the Northern District litigation will ultimately result in a transfer of that case to this court. They further argue that any stay will unnecessarily delay resolution of the dispute between the parties and that, by requesting a stay, the Defendant is engaging in a strategy of delay.
While this case already has been assigned a track and a presumptive trial month of December, 2006, a short stay is warranted pending resolution of the parallel litigation in the Northern District. It would be a waste of judicial resources to have practically identical litigation pending in two different courts. However, any stay in this matter is not indefinite. The Defendant has indicated that it expects a ruling in January 11, 2006. Therefore, this matter is STAYED until January 18, 2006. The parties shall timely inform the court of any activity by the Northern District that would affect the stay in this matter. As indicated at the status conference, this matter is RESET for a Telephonic Scheduling Conference on January 18, 2006 at 10:30 a.m.
For the foregoing reasons, the Motion for Entry of Default filed by the Plaintiffs, William Cunningham and Cunningham Electronics Corporation, on October 24, 2005 is DENIED (Doc. 8) and the Motion to Stay filed by the Defendant, Posnet Service, LLC, on October 27, 2005 is GRANTED IN PART (Doc. 11).