The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Tuesday, 31 May, 2011 02:41:54 PM
Clerk, U.S. District Court, ILCD
The Court now considers Plaintiff Capital Airline Engine Leasing, LLC's (Capital) "Motion for Default Pursuant to Rule 55(a) Against Defendant European Aviation Air Charter, Ltd." (Motion for Entry of Default) (d/e 16) and Defendant European Aviation Air Charter, Ltd.'s (EAAC) "Motion to Dismiss Plaintiff's Complaint" (Motion to Dismiss) (d/e 31). For the reasons stated below, both motions are DENIED.
On May 4, 2010, Capital filed a Complaint against Defendants EAAC, European Aviation, Ltd. (European Aviation), and European Skybus Ltd. (European Skybus). Capital submitted a Request for Service Abroad of Judicial or Extra-judicial Documents for each Defendant. The summonses for Defendants European Aviation and European Skybus were returned executed by Capital and showed those Defendants were served on May 23, 2010, and May 27, 2010, respectively. However, EEAC was never served and the summons for EEAC was returned unexecuted.
On August 12, 2010, Stephen R. Kaufmann and Scott A. Semenek filed their Entry of Appearance (d/e 7) on behalf of all the Defendants, including EAAC. That same day, Defendants filed a Motion for Extension of Time to Plead (d/e 8). Capital did not oppose this motion, and Defendants were given until August 30, 2010, to plead to the Complaint.
On August 30, 2010, Kaufmann and Semenek filed a Notice of Withdrawal as Attorneys of Record for Defendant EAAC (Notice of Withdrawal) (d/e 12). Also on August 30, 2010, Kaufmann filed a Motion to Dismiss on behalf of European Aviation and European Skybus. On October 15, 2010, the Court dismissed the claims against European Aviation and terminated it as a party to the case. European Skybus was directed to answer the Complaint by October 28, 2010.
On September 16, 2010, Capital filed its Motion for Entry of Default against EAAC. Capital asked the Court to enter default against EAAC based on its failure to answer or otherwise plead and stated: "To date, no answer to the Complaint has been filed by Defendant [EAAC] even though that entity appeared before this Court on August 12, 2010, and requested and received leave of this Court to file an answer no later than August 30, 2010."
A September 30, 2010, minute entry indicates a telephone hearing was held regarding counsels' Notice of Withdrawal and Capital's Motion for Default Judgment. EAAC was reported as being involved in bankruptcy proceedings in England. Semenek agreed to obtain more details regarding EAAC's bankruptcy proceedings to share with the Court and Capital's counsel. Semenek was to file a status report by November 1, 2010. No rulings were entered on any pending motions at that time.
European Skybus filed motions for extension of time to file the status report on October 28, 2010, November 23, 2010, and December 23, 2010. These motions were all granted. European Skybus filed the status report on January 20, 2011, and filed its Answer and affirmative defenses to Capital's Complaint the next day.
The January 20, 2011, status report on EAAC's bankruptcy stated that the Liquidator*fn1 had concluded the liquidation of EAAC at a final meeting of members and creditors on March 12, 2010. Attached to the status report was the Liquidator's Final Report, which states "there have been insufficient realizations to enable a dividend to unsecured creditors." The status report states "EAAC no longer conducts business or owns any assets and has been fully liquidated and dissolved. Additionally, all claims against EAAC have been fully administered and discharged. In short, the entity no longer exists as a viable defendant."
On February 4, 2011, the Court held another telephone hearing regarding the pending Motion for Entry of Default as to EAAC. The minute entry indicates that "[a]ll attorneys agree that further contact is needed regarding the liquidation proceedings in England and their clients' positions so that the attorneys can proceed with a resolution of their disputes." ...