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Yellow Book Sales and v. Joseph White and Steven Kohner D/B/A

March 10, 2011

YELLOW BOOK SALES AND
DISTRIBUTION COMPANY, INC. PLAINTIFF,
v.
JOSEPH WHITE AND STEVEN KOHNER D/B/A/
OR A/K/A/ HAPPE LIMITED PARTNERSHIP,
CIVIL ACTION PCE ELECTRIC INC.,
PERFECT CONNECTION ELECTRIC INC.,
PERFECT HOME IMPROVEMENTS,
ELECTRICIAN 24/7, ELECTRIC PROBLEMS?,
NO GIMMICK PRICING, 24 HR. SAME DAY SERVICE, CA ELECTRIC, DOMINIC'S
CONCRETE, THE CONCRETE SPECIALIST, A.F.D.R. INVESTMENTS, ASSET USA,
ELECTRICIAN, INC., LAS VEGAS ELECTRIC, JOHNNY THE PLUMBER,
JONNY THE PLUMBER,
NATIONWIDE HOME SOLUTIONS, INC.,
FUNCO LP AND S. KOHNER ELECTRIC DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is Plaintiff Yellow Book Sales and Distribution Company, Inc.'s ("Yellow Book") "Motion to Strike Answer and New Matter of Defendant Joseph White" ("Motion"). For the reasons set forth below, Yellow Book's Motion will be granted.

I. BACKGROUND

On June 24, 2010, Yellow Book filed a Complaint against Defendant Joseph White ("White") and Defendant Steven Kohner ("Kohner") for breach of contract, fraud, conspiracy and unjust enrichment. Yellow Book alleges that White perpetrated a fraud upon Yellow Book by himself and in conspiracy with Kohner by contracting for Yellow Book's advertising services using various alter ego businesses, paying the minimum required down payment and willfully failing to pay the remaining balances under the contracts. (Compl. ¶ 16.) Yellow Book served its Complaint upon Defendant White on October 31, 2010.

On December 1, 2010, Plaintiff submitted "Plaintiff's Request for Entry of Default Against Defendant Joseph White" to the Clerk of Court for failure to answer or otherwise respond to the Complaint. One day later, on December 2, 2010, the Clerk of the Court entered a default against White for his failure to appear, plead or otherwise defend in the instant action.

On December 10, 2010, White filed "Answer of Defendant Joseph White to Plaintiff's Complaint with New Matter" ("Answer"). In response, On December27, 2010, Yellow Book filed a "Motion to Strike Answer and New Matter of Defendant Joseph White" ("Motion to Strike") with an accompanying "Memorandum of Law in Support of Motion to Strike Answer and New Matter of Defendant Joseph White" ("Pl's Memo"). Essentially, Yellow Book argues that White's untimely Answer violated Federal Rule of Civil Procedure12(a)(1)(A)(i) and Federal Rule of Civil Procedure 7 and should therefore be stricken.*fn1 (Pl's Memo at 3.)

II. DISCUSSION

1. Time for Filing a Responsive Pleading

Federal Rule of Civil Procedure12(a)(1)(A)(i) governs the time to serve a responsive pleading. Fed. R. Civ. P. 12(a). It states in relevant part: "the time for serving a responsive pleading is within 21 days after being served with the summons and complaint." Id. A party who fails to timely answer the original complaint risks entry of default and judgment of default. Rule 6(b) provides the method by which a party may seek an extension of time for filing an answer. Fed. R. Civ. P. 6(b). It states in pertinent part: "When an act may or must be done within a specified time, the court may, for good cause, extend the time if a request is made before the original time expires or on motion made after the time has expired if the party failed to act because of excusable neglect.*fn2 Id.

If the moving party does not seek an extension until after the time limit has expired, the court may exercise its discretion only if a motion is made and the moving party proves its failure to comply with the applicable deadline was the result of excusable neglect. Drippe v. Tobelinksi, 604 F.3d 778, 784 (3d Cir. 2010) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896 n. 5. (1990)). Whether an act or omission qualifies as excusable neglect depends on three factors: the danger of prejudice to the [opponent], the length of the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. In re O'Brien Envtl. Energy, Inc., 188 F.3d 116, 125 (3d Cir. 1999).

White's failure to timely plead or otherwise defend constituted a proper basis for an entry of default under Rule 55(a). Although White was properly served on October 31, 2010, he did not file an Answer until December 10, 2010. This was nine days after the entry of default. Prior to filing the untimely Answer, White at no time availed himself of the protections provided for in Rule 6(b) by seeking an extension of time. The Answer itself offers no acknowledgment or explanation for the late submission.

2. Relief from Entry of Default

When a default is entered against a party who has failed to plead or otherwise defend, it may only be vacated upon a showing of "good cause" under Rule 55(c) or for reasons provided for under Rule 60(b). White neither alleged good cause for the untimely submission at the time he filed his Answer nor do we find good cause at present. Thus, entry of default was proper and we will strike White's Answer and New Matter due to its untimely submission.

Federal Rule of Civil Procedure 55(a) instructs the clerk to enter 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. Fed. R. Civ. P. 55(a). A party may seek relief from an entry of default under Rule 55(c) or Rule 60(b).*fn3 Rule 55(c) provides: "The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Fed. R. Civ. P. 55(c). In considering whether good cause exists to set aside a default, we must consider "whether the plaintiff will be prejudiced; whether the defendant has a meritorious defense; and whether the default was the ...


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