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Scholz Design, Inc v. Dominic Costa

February 11, 2011

SCHOLZ DESIGN, INC.,
PLAINTIFF,
v.
DOMINIC COSTA, ROCHELLE COSTA, DOMINIC J. COSTA BUILDERS, INC., AND JOHN DOES(S) 1-5 AND OR JANE DOE(S) 1-5
DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

Names and Addresses Unknown

MEMORANDUM OPINION AND ORDER

Pending before the Court is a motion to set aside default filed by Defendants Dominic Costa, Rochelle Costa, and Dominic J. Costa Builders, Inc. (Doc. No. 15), along with Plaintiff‟s answer to Defendants‟ motion, with attached memorandum of law and exhibits (Doc. No. 16). Also pending before the Court is Plaintiff‟s motion for default judgment (Doc. No. 8), with memorandum in support (Doc. No. 9). The motions are ripe for disposition. For the reasons that follow, Defendants motion to set aside default will be granted and Plaintiff‟s motion for entry of default judgment will be dismissed as moot.

Factual and Procedural Background

Plaintiff Scholz Design, Inc. ("Scholz") is a Delaware corporation with its principal place of business in Toledo, OH that is engaged in the research, development, creation and sale of architectural home designs and drawings, and initiated the above captioned action with the filing of its complaint on December 9, 2010. See Doc. No. 1. In general, Plaintiff alleges copyright infringement of its architectural designs and drawings for a particular house design, the "Masco House 4434 Design" (the "Masco Design"), by the Defendants and in violation of the copyright laws of the United States, 17 U.S.C. § 101, et seq. Id. According to proofs of service filed by Plaintiff, Defendants Dominic Costa, Rochelle Costa, and Dominic J. Costa Builders, Inc. were personally served on December 17, 2010. See Doc. Nos. 4 -- 6.*fn1

No responsive pleading was filed by Defendants within 21 days after service, and on January 10, 2011, Plaintiff requested that a default be entered pursuant to Federal Rule of Civil Procedure 55(a). Doc. No. 7. On that same day, Plaintiff further moved for entry of default judgment pursuant to Rule 55(b)(1). Doc. No. 8; see also Doc. No. 9. Default was entered against Defendants by the Clerk of Court on January 12, 2011. Doc. No. 10. On January 13, 2011, Defendant Dominic Costa filed a pro se motion requesting an extension of time to file an answer to the Plaintiff‟s complaint. Doc. No. 11. With his motion, Defendant Costa sought additional time in order to retain legal representation to answer the complaint. Id. On January 19, 2011, Plaintiff opposed Defendant‟s motion, noting that an answer cannot be filed after default had been entered against Defendants, which occurred prior to the filing of the motion for an extension. See Doc. No. 12.

On January 20, 2011, counsel for Defendants entered his appearance. Doc. No. 13. Also on January 20, 2011, the Court denied Defendant Dominic Costa‟a pro se motion for an extension of time to file an answer, noting that, given the procedural posture of the action, Defendants must move to set aside the default before a responsive pleading can be filed. Doc. No. 14. On January 24, 2011, Defendants, through counsel have done just that, with the filing of the pending motion to set aside the default. Doc. No. 15. On February 3, 2011, Plaintiff responded in opposition to Defendants‟ motion to set aside the entry of default. Doc. No. 16.

Standard of Review

The entry of default, the granting of default judgment, and the setting aside of default are provided for in Federal Rule of Civil Procedure 55. This rule states in relevant part:

(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

(b) Entering a Default Judgment.

(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk-on the plaintiffs request, with an affidavit showing the amount due-must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing....

(2) By the Court. In all other cases, the party must apply to the court for a default judgment.... If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing....

(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a ...


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