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New London Tobacco Market, Inc. v. Kentucky Fuel Corporation

United States District Court, E.D. Kentucky, Southern Division

June 23, 2017

NEW LONDON TOBACCO MARKET, INC. and FIVEMILE ENERGY, LLC, Plaintiffs,
v.
KENTUCKY FUEL CORPORATION and JAMES C. JUSTICE COMPANIES, INC., Defendants.

          MEMORANDUM OPINION & ORDER

          Gregory Pvan Tateiiliove United States District Judge

         This matter is before the Court on Defendants' Motion to Set Aside Default. [R. 304.] After extensive briefing, on September 30, 2014, this Court entered Default as to liability against Defendants according to Federal Rule 37(b)(2)(A). [R. 206.] Defendants request that this Court overturn the finding of default liability, but the factors for consideration of overturning a default weigh heavily in favor of maintaining default as to liability. Accordingly, the Motion to Set Aside Default [R. 304] is DENIED.

         I

         Defendants have a long history of contumacious practice in this case that began in 2012. Their violations occurred in four large categories.

         First, the obstruction started with the very first deadline in the pretrial scheduling order. Defendants were to serve their initial disclosures on October 3, 2012, and they did not comply. [See R. 80-1 at 1.] After a conference call, Defendants were admonished by the Magistrate Judge to comply with the scheduling order and produce documents no later than November 27, 2012. [See R. 24] In defiance of the Court's order, Defendants produced documents postmarked November 28, 2012. [See R. 80-1 at 2.]

         Second, Defendants failed to follow the Court's order when obtaining counsel. Defendants' first counsel of record, Billy Shelton, indicated he would be withdrawing from the case on February 15, 2013, and indicated replacement counsel would be shortly forthcoming. [R. 56-5 at 5.] On March 4, 2013, Defendants indicated they had obtained replacement counsel, Allen W. Dudley, Jr., but had not yet submitted paperwork for him to be admitted pro hac vice. [See R. 36.] The Magistrate Judge ordered that Defendants submit the required paperwork by filed promptly. [Id.] Again defying the Court's order, Mr. Shelton actually withdrew his representation on June 24, 2013, and Mr. Dudley entered as counsel on July 29, 2013. [R. 60; R. 95.] On July 22, 2013, three attorneys from Frost Brown Todd entered their appearance and quickly withdrew their appearance on July 26, 2013. [R. 79; R. 89.] Defendants blame much of their lack of response to discovery requests on this inability to obtain counsel, though they indicated in March that they had obtained Mr. Dudley. [See R. 169.]

         Third, Defendants did not respond to discovery requests. Plaintiffs entered their First Set of Interrogatories and Requests for Production of Documents on January 4, 2013, and Defendants were to respond within thirty (30) days. [R. 80-1.] Plaintiffs entered their Second Set of Requests for Production of Documents on January 18, 2013, and Defendants were again required to respond within thirty (30) days. [Id.] Defendants missed both deadlines and Plaintiffs requested a telephone conference with the Magistrate Judge, which was held on February 27, 2013. [R. 33.] The Magistrate Judge set new deadlines for responding to Plaintiff's requests and Defendants complied. However, Plaintiffs believed that Defendants' responses were incomplete as to the Fivemile leases and permits [R. 56-1], leading to another telephone conference on May 6, 2013. This series of exchanges led to the Magistrate Judge granting Plaintiff's motion to compel Defendants to produce the Fivemile leases and permits. [R. 99.] Defendants were given seven (7) days from July 30, 2013, to comply with the Magistrate's order and they did not comply. Defendants instead filed a motion for a protective order. [R. 103.] Magistrate Ingram again held a telephonic conference on August 13, 2013. [R. 114.] After briefing, the Magistrate granted in part and denied in part the Defendants' protective order. [R. 122.] The Court again ordered Defendants to produce the Fivemile leases and permits that were not protected by the Protective Order on September 19, 2013. [R. 124.] Plaintiffs filed for sanctions on October 8, 2013, as the discovery Defendants had turned over was likely incomplete. [R. 131.] Indeed, on October 25, 2013, Defendants turned over nearly 1, 000 emails related to the Fivemile leases, over a month after the Magistrate Judge ordered. [R. 144.] Further, Plaintiffs reported that discovery responses concerning minimum royalty payments to Fivemile landowners were not provided and a deposition revealed some information previously provided to Plaintiffs was inaccurate. [R. 150 at 6.]

         Additionally, on January 4, 2013, in Plaintiffs' First set of Written Interrogatories and Requests for Production, they requested information on Defendants' finances. [R. 80-1 at 3.] Defendants were to respond within thirty (30) days but they did not. On April 9, 2013, the Magistrate ordered Defendants to produce redacted copies of pages from their tax returns. [R. 47.] Plaintiff agreed to allow Defendants additional time to produce these documents while a Motion to Dismiss was pending. Plaintiffs filed a Motion to Compel on July 18, 2013, [R. 76] and after briefing, the Magistrate ordered Defendants to produce documents by October 15, 2013. [R. 128.] Defendants objected on October 15, 2013, [R. 133] and this Court overruled their objections on December 16, 2013. [R. 156.] Essentially, Defendants never produced the required tax returns and continued making objections and motions for reconsideration and not complying with the Court's repeated order. In fact, Defendants turned over their tax returns on March 10, 2016, over three (3) years later. [R. 265.] On March 15, 2016, Plaintiffs, noticing discrepancies in the tax returns, emailed Defendants to inquire if the tax returns they had received were actual tax returns. [See id.] They were not, but were forms prepared by accounting firms and Defendants then agreed to submit their actual tax returns on April 1, 2016. [See id.] Plaintiffs outlined the differences between the first and second set of tax returns, proving that, even with their extremely late compliance with the Court's order, they did not actually comply at all. [Id. at 5.]

         Fourth, James C. Justice, II was to be deposed on July 31, 2013, at 9:00 a.m. [R. 66.] Following a Motion for Protective Order [R. 90], Motion for Extension of Time [R. 91], and Motion for Withdrawal of Counsel [R. 89], the Magistrate Judge again held a telephonic conference, parties agreed to continue with the deposition. [R. 98.] After a considerable amount of effort from Plaintiffs to schedule the deposition, Mr. Justice did not actually appear for his deposition that was eventually scheduled for November 7, 2013, at 9:00 a.m. [R. 170-1 at 3.] Mr. Justice has never been deposed.

         II

         Under Federal Rule of Civil Procedure 55(c), “[t]he court may set aside an entry of default for good cause.” “When a defendant seeks relief from a default . . . the district court enjoys considerable latitude under the ‘good cause shown' standard.” Waifersong, Ltd. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992). “What constitutes good cause for setting aside an entry of default is within the discretion of the court.” Seye v. Community Yellow Cab NKMgmt., LLC, 2011 WL 3739142, *1 (E.D. Ky. Aug. 2, 2011) (citing 10A Fed. Prac. & Proc. § 2696 (2011)); see also Krowtoh II LLC v. ExCelsius Intern., Ltd., 330 Fed.Appx. 530, 534 (6th Cir. 2009) (“This Court reviews a district court's decision to deny a motion to set aside an entry of default for an abuse of discretion.”).

         In determining whether there is “good cause” to set aside an entry of default, the Sixth Circuit has instructed courts to consider three equitable factors: “(1) whether culpable conduct of the defendant led to the default, (2) whether the defendant has a meritorious defense, and (3) whether the plaintiff will be prejudiced.” Burrell v. Henderson, 434 F.3d 826, 831-32 (6th Cir. 2006) (quoting Waifersong, Ltd., 976 F.2d at 292) (citing United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 844-46 (6th Cir. 1983) (setting forth the “good cause” standard in the Sixth Circuit and finding that the district court erred in reaching a determination of no good cause without considering all three factors). These factors are to be “balanced” and will be addressed in turn. Waifersong, Ltd., 976 F.2d at 292.

         A

         Under the first factor, when determining whether a defendant's culpable conduct led to the default, the court should consider the defendant's behavior “in the general context of determining whether a petitioner is deserving of equitable relief.” Waifersong, Ltd., 976 F.2d at 292. For a defendant's conduct to be treated as culpable, “mere carelessness is not enough; rather, there must be ‘either an intent to thwart judicial proceedings or a reckless disregard for the effect of its conduct on those proceedings.'” Southern Elec. Health Fund v. Bedrock Servs., 146 Fed.Appx. 772, 777 (6th Cir. 2005) (quoting Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 194 (6th Cir. 1986)). Further, a defense of ineffective assistance of counsel is not ...


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