Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A bench trial was held on May 18, 2006. Defendant Nathan A. Roesing failed to appear. For the reasons set forth below, the Court entered default judgment against Mr. Roesing. Defendant Roesing failed to prepare for the final pretrial conference held on June 24, 2005. The Court told Defendant Roesing that he would be given until vs. Nathan A. Roesing, et al, Defendants. Best Western International, Inc., Plaintiff, ) ) ) ) ) ) ) ) ) ) No. CV 03-2396-PHX-DGC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

ORDER

August 26, 2005 to either resolve the matter with Plaintiff, retain counsel, or proceed with defending the case on his own. Doc. #32. Defendant Roesing did not settle the case or retain counsel by August 26, 2005. Doc. #35. As a result, the Court set another Final Pretrial Conference for March 15, 2006. Doc. #37. Defendant Roesing failed to prepare for the second final pretrial conference. He did not submit any of the documents required by the Court's orders of April 28, 2005 or January 25, 2006. Docs. ##28, 37. As a result, the Court ruled that Mr. Roesing had waived any objections to witnesses or exhibits set forth in Best Western's Proposed Final Pretrial Order (Doc. #29). The Court also concluded that Mr. Roesing had waived his right to seek
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affirmative relief in the counterclaim by failing to participate in the pretrial process as directed by the Court. Doc. #38. The Court nonetheless granted Mr. Roesing one final opportunity to identify evidence to be presented in defense against Plaintiff's claims. The Court granted Mr. Roesing until April 7, 2006 to identify witnesses and exhibits to be presented at trial. Id. Mr. Roesing failed to identify any witnesses or exhibits. During a final conference on May 11, 2006, the Court ruled that Mr. Roesing would not be permitted to present witnesses and exhibits at trial. Doc. #45. The Court stated that Mr. Roesing would be permitted to cross-examine Plaintiff's witnesses and make arguments to the Court. Mr. Roesing, who was participating by telephone from out of state, assured the Court that he would appear at trial and defend himself. The Court directed Mr. Roesing to be ready to proceed at 8:45 a.m. on

May 18, 2006. Mr. Roesing did not appear for trial. The Court waited until 9:20 a.m. before entering default judgment against him. Because of Mr. Roesing's repeated failures to participate in the pretrial and trial process, the Court concluded that default judgment was warranted under Rule 16(f) of the Federal Rules of Civil Procedure. See also Rule 37(b)(2)(C). The Court admitted into evidence the exhibits presented by Plaintiff. The Court also accepted a proffer from Plaintiff's counsel concerning the amount of damages that would be proven by the evidence. The Court questioned Plaintiff's counsel to the extent necessary to satisfy itself that the Plaintiff's calculation of damages is correct. On the basis of the exhibits received in evidence at the trial and Plaintiff's proffer, the Court will enter a default judgment against Mr. Roesing for an account balance of $157,955.32 and liquidated damages of $217,429.75. Thus, the total amount of damages to be awarded against Mr. Roesing in this case will be $375,385.07.

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IT IS HEREBY ORDERED: 1. That default judgment will be entered against Defendant Nathan A. Roesing

under Rule 16(f) of the Federal Rules of Civil Procedure. Plaintiff will be awarded damages in the amount of $375,385.07. 2. Within 15 days of the entry of judgment, Plaintiff shall submit an application

for attorneys' fees. The provisions of Local Rule of Civil Procedure 54.2 notwithstanding, Plaintiff shall submit both the motion and memorandum in support within 15 days of judgment. The motion and memorandum shall comply with the requirements of

LRCiv.54.2(c), (d) and (e), 3. Defendant Roesing shall have 20 days within which to file a response to

Plaintiff's motion for attorneys' fees. Plaintiff shall have 10 days to file a reply. DATED this 22nd day of May, 2006.

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