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Rank DMS, LLC v. Direct Disc Network

February 8, 2008

RANK DMS, LLC, PLAINTIFF,
v.
DIRECT DISC NETWORK, INC.,LANCE H. ROBBINS, AND HARRY FEINGOLD, DEFENDANTS.



The opinion of the court was delivered by: Judge Moran

Magistrate Judge Valdez

RANK DMS, LLC'S ADDITIONAL OPPOSITION TO PLAINTIFF'S MOTION TO VACATE DEFAULT ORDER AND RENEWED MOTION FOR ENTRY OF JUDGMENT

Plaintiff Rank DMS, LLC (f/k/a Deluxe Media Services, LLC) ("Rank"), by its attorneys, DLA Piper US LLP, hereby submits this Additional Opposition to Plaintiff's Motion to Vacate Default Order and renews its motion for entry of final judgment against Defendants Direct Disc Network, Inc. ("DDN"), and Lance Robbins ("Robbins"). Through this further opposition and renewed motion, Rank seeks to have this Court deny Defendants' pending Motion to Vacate Default Order and enter judgment in Rank's favor. In support of its further opposition and renewed motion, Rank states as follows:

1. Months after this Court entered a default order against Defendants Robbins and DDN, Defendants continue as before, failing to participate meaningfully in the litigation, providing incomplete or unresponsive answers to outstanding pleadings and discovery, blatantly ignoring this Court's repeated extensions, and being less than truthful about their alleged compliance. Defendants did not present justifiable reasons for their default back in November, yet this Court gave Defendants the benefit of the doubt and the opportunity to cure their default. That has not happened.

2. The Court issued its order of default on October 10, 2007 ("Default Order"). (Docket #79.) Shortly before the prove-up hearing on November 13, 2007, Defendant Robbins indicated an alleged intention to participate in this case after ignoring it for months. Based on Robbins's representations regarding the reasons for his default and his claim that he wanted to participate in this case, this Court gave him several repeated opportunities to cure his default by responding to Rank's Second Amended Complaint, providing overdue discovery responses, and producing documents. However, Robbins has not done almost any of the things that he told this Court he would do, and he has not demonstrated any legitimate inclination to participate actively in this case. Because Robbins's default continues and he has not provided any legitimate basis upon which the Court should vacate its Default Order, Rank seeks denial of Plaintiff's Motion to Set Aside the Default Judgment Pursuant to Fed. R. Civ. P. 55(c) ("Motion to Set Aside Default") (Docket #85) and for entry of judgment against DDN and Robbins, jointly and severally, in the amount of $3,007,168.91.

Procedural History and Related Facts

3. On August 23, 2007, this Court granted Rank's Motion for Leave to File Second Amended Complaint. (Motion at Docket #70; Order at Docket #75.) The Second Amended Complaint alleges counts of fraud and breach of contract against Robbins and DDN and also seeks declaratory relief against DDN. (Exhibit A to Docket #70.)

4. Robbins was originally required to answer the Second Amended Complaint by about September 12, 2007. At the status hearing on September 12, 2007, Rank's counsel advised the Court that Robbins had not yet filed an answer, and the Court directed that Robbins answer or otherwise plead on or before October 3, 2007. (Docket #77.)

5. On October 10, 2007, Rank orally advised this Court that Robbins had not answered the Second Amended Complaint and also had not responded to Rank's First Set of Interrogatories to Defendant Lance H. Robbins ("Interrogatories") and First Requests for Production of Documents to Defendant Lance H. Robbins ("Requests for Production"), which were served on July 6, 2007, or Rank's Requests for Admission to Defendant Lance H. Robbins ("Requests for Admission"), which were served on August 24, 2007. The Court granted Rank's oral motion for entry of default against Robbins and DDN and set a prove-up hearing for November 7, 2007. (Docket #79.)

6. Rank filed a Motion for Entry of Judgment in advance of the prove-up date. (Docket #80.) The Motion details Rank's damages in the form of payments it made to DDN, unpaid invoices for discs that it produced for DDN, and storage costs for products that were refused on delivery. (Docket #80.) Rank's damages total $3,007,168.91. (Id.)

7. The Court, on its own motion, continued the prove-up hearing to November 13, 2007. On the day of the prove-up hearing, Robbins filed his Motion to Set Aside Default. (Docket #85.) In his Motion and supporting affidavit, Robbins claimed that he had good cause for failing to respond to discovery and for failing to attend the October 10, 2007, status conference, emphasizing his pro se status and stating that he had recently been caring for his sick parents. He did not mention his failure to answer the Second Amended Complaint or his failure to attend any other status conferences. Rank filed an opposition to this Motion, explaining that Robbins had not stated any legitimate legal or factual basis for this Court to vacate the default. (Docket #84.)

8. At the prove-up hearing on November 13, 2007, the Court did not rule on either Rank's Motion for Entry of Judgment or Robbins's Motion to Set Aside Default, instead continuing both motions and ordering that Robbins respond to outstanding discovery requests and answer the Second Amended Complaint before December 18, 2007. (Docket #86.)

9. On December 17, 2007, Robbins faxed his Responses and Objections to Plaintiff Rank DMS, LLC Requests for Admissions Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure ("Responses to Requests for Admission") to Rank's counsel. Robbins did not respond to Rank's Interrogatories or Requests for Production and did not file an answer to the Second Amended Complaint at that time.

10. At the status hearing on December 18, 2007, Rank's counsel informed the Court that Robbins had not properly responded to the Requests for Admission and still had not responded to Rank's other discovery requests or answered the Second Amended Complaint. The Court ordered yet another continuance, until January 2, 2008, and ordered that Robbins provide his delinquent discovery responses and responsive pleading before that date. (Docket #88.) The ...


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