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Hart v. Connected Wireless, Inc.

United States District Court, D. Utah

June 6, 2018

RYAN HART, an individual, Plaintiff,
v.
CONNECTED WIRELESS, INC., a Utah Corporation Defendant.

          MEMORANDUM DECISION AND ORDER DENYING MOTION FOR DEFAULT JUDGMENT

          TED STEWART JUDGE

         This matter is before the Court on Plaintiff's Motion for Default Judgment for Failure to Appear or Appoint Counsel. For the following reasons, the Court will deny Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff Ryan Hart filed this action on January 17, 2017, in the Fourth Judicial District Court of Utah asserting violations of sections of the Americans with Disabilities Act and the Utah Antidiscrimination Act. On March 14, 2017, the case was removed to this Court. Defendant filed an Answer to the Complaint and the parties attended a settlement conference on January 18, 2018, but no settlement was reached.

         On March 14, 2018, Defendant's counsel filed a motion to withdraw. The Court granted the motion the next day and ordered Defendant to “file a notice of appearance within twenty-one (21) days after entry of the order, unless otherwise ordered by the Court.”[1] The March 15 Order further stated that the failure to file a Notice of Substitution of Counsel or Notice of Appearance may result in an issuance of “sanctions pursuant to Federal Rules of Civil Procedure 16(f)(1), including but not limited to dismissal or default judgment.”[2]

         Defendant failed to comply with the Court's Order within the time set out in the March 15 Order. On May 8, 2018, Plaintiff filed the Motion now before the Court for entry of default on the basis that Defendant “failed to retain new counsel, failed to direct new counsel to make an appearance, and/or failed to take any action to defend against this lawsuit.”[3] On May 23, 2018, Defendant filed two Notices of Appearance, but has not responded to Plaintiff's Motion.

         II. DISCUSSION

         Rule 55(a) of the Federal Rules of Civil Procedure provides that default must be entered “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” However, Defendant has filed an Answer, attended the settlement conference, and otherwise participated in the earlier stages of the litigation proceedings. The Court, therefore, declines to grant default under Rule 55(a). However, as referenced in the March 15 Order, default judgment may be entered as a sanction against Defendant for its failure to comply with the Court's orders.

         Federal Rule of Civil Procedure 16(f)(1)(c) provides that “the court may issue any just orders, including those authorized by rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a . . . pretrial order.” Rule 37(b)(2)(A) allows for the following sanctions:

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or ...

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