in this matter, and also asks us to set aside a default judgment in the amount of $261,250.00 obtained by plaintiffs against him and the corporate defendant. For reasons set forth in this memorandum, we will entertain the motion to set aside the default, and we will order an appropriate stay of execution, pending determination of that motion.
Collex, Inc. and Collex Leasing, Inc., filed suit on August 21, 1974, alleging breaches of a franchise agreement and of an oral lease. Jurisdiction, based upon diversity of citizenship, was alleged under 28 U.S.C. § 1332; both jurisdiction and venue appear to lie properly in this Court, in view of the terms of the franchise agreement. Service was made on both defendants on August 29, 1974, as per the Marshal's return. On August 29, 1974, an Amended Complaint was filed, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. This amendment claimed damages in the amount of $250,000.00 plus interest, as a sum certain due and owing to plaintiffs. Service of this pleading was made on September 20, 1974, as evidenced by the Marshal's return.
An Order of this Court was filed on February 25, 1975, setting forth time frames within which the litigation was to proceed. Discovery was to be completed by May 20, 1975; a settlement conference, as per that Order, was set for May 29, 1975; a final pretrial order was to be filed on August 15, 1975; a final pretrial conference was scheduled for September 12, 1975; trial was set to begin on September 22, 1975. A final provision of the Order required that any motion with respect to change of venue, or stay of the proceedings should be filed by March 20, 1975, together with briefs in support thereof, and any answer in opposition thereto would then become due on April 7, 1975.
The plaintiffs attempted to amend the complaint a second time on February 27, 1975. However, leave of court was not granted, and the amendment accordingly was not permitted. On April 1, 1975, the Clerk was requested to enter judgment by default against the defendants for failure to move or otherwise plead. The judgment was entered by the Clerk of this Court, pursuant to Rule 55(b)(1) of the Federal Rules of Civil Procedure, for the sum certain of $261,250.00, which represented the demand in the amended complaint, together with interest to that date.
The receipt of notice of the judgment provoked a flurry of letters from defendant Dudley Walsh. This Court admonished him that:
communications directed to chambers are not a substitute for filings of record with the Clerk of the District Court.