Free Motion for Default Judgment - District Court of Arizona - Arizona

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Daniel P. Collins (State Bar Id No. 009055) Theodore P. Witthoft (State Bar Id No. 021632)
COLLINS, MAY, POTENZA, BARAN & GILLESPIE, P.C.

201 North Central Avenue, Suite 2210 Phoenix, Arizona 85004-0022 (602) 252-1900 Email: [email protected] Attorneys for Northern Wisconsin Produce Company, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA NORTHERN WISCONSIN PRODUCE ) COMPANY, INC., a Wisconsin corporation, ) ) ) Plaintiff, ) ) v. ) ) STEVEN J. DELAPORTAS and JANE DOE ) ) DELAPORTAS, husband and wife; CHRISTOPHER VASILAS and JANE DOE ) VASILAS, husband and wife; and IONIAN ) ) FOODS L.L.C., an Arizona limited liability ) company, ) ) ) Defendants. 2:02-cv-02366-HRH

MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST STEVEN J. DELAPORAS AND JOANNE DELAPORTAS, AND IONIAN FOODS, L.L.C.

Plaintiff, Northern Wisconsin Produce Company, Inc. ("Northern Wisconsin"), by and through his undersigned counsel, Collins, May, Potenza, Baran & Gillespie, P.C. ("CMPBG"), hereby moves the Court pursuant to the provisions of Rule 55(b), Fed.R.Civ.P., and pursuant to this Court's order of April 23, 2005 (Dkt No. 135), to enter judgment by default in favor of Northern Wisconsin and against defendants Steven J. Delaportas ("Steven Delaportas" or "Mr. Delaportas") and Joanne Delaportas aka Joanne Guggino ("Joanne Delaportas" or "Ms. Delaportas"), husband and wife, and Ionian Foods, L.L.C. ("Ionian") (collectively the

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"Defendants"). Entry of said Judgment, in the form submitted herewith, is appropriate under the foregoing Rule for the following reasons: 1. 2. Northern Wisconsin filed its complaint against Defendants on November 25, 2002. Defendants were served with a copy of the summons and complaint on January 22,

2003, as evidenced by the Acceptance of Service on file with this Court (Dkt No. 4). The Acceptance of Service was signed by W. Gregory Shanaberger ("Mr. Shanaberger") on behalf of Steven J. Delaportas and Ionian Foods, LLC. 3. The answer of Steve Delaportas and Joanne Delaportas was filed with the Court on

February 10, 2003 (Dkt No. 7). 4. Ionian's answer was filed with the Court on February 11, 2003 (Dkt No. 9).

Default of Joanne Delaportas 5. On May 28, 2004, plaintiff filed its Application for Entry of Default, Affidavit on

Default and Entry of Default (Dkt Nos. 39 and 40) and gave notice to Ms. Delaportas that a default judgment would be entered against her. 6. Ms. Delaportas did not file a responsive pleading or otherwise defend the action;

therefore, the Clerk entered default against Joanne Delaportas on June 29, 2004 (Dkt No. 44). 7. On November 5, 2004, the Court ordered that the answer of Joanne Delaportas be

stricken (Dkt No. 56). 8. Ms. Delaportas is not a minor or incompetent person.

Default of Ionian 9. On February 1, 2008, Northern Wisconsin filed its motion for an order striking

answer of Ionian and for entry of default judgment against Ionian (the "Motion to Strike") (Dkt No. 124). On February 27, 2007, the Court denied Northern Wisconsin's Motion to Strike and gave Ionian an opportunity to obtain counsel and make an appearance on or before March 14, 2008 (Dkt No. 130). Ionian failed to obtain counsel and enter an appearance. 10. On April 1, 2008, the Court ordered that Ionian's answer be stricken and that the

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Clerk enter default against Ionian (Dkt No. 131). 11. The Clerk entered default against Ionian on April 2, 2008 (Dkt No. 132). 12. Ionian is not a minor or incompetent person. Default of Steve Delaportas 13. On April 1, 2008, the Court ordered Mr. Delaportas to "provide the clerk of court with both a current mailing address and telephone number, and . . . serve and file a notice of his availability to participate with plaintiff's counsel and the court in a scheduling conference . . . . In absence of all the foregoing, defendant Delaportas shall, on or before April 15, 2008, show cause why his answer should not be stricken and a default entered against him for failure to participate in necessary scheduling and pretrial proceedings." April 1, 2008 Order, p.3. (Dkt No. 131). 14. On April 22, 2008, the Court ordered that Mr. Delaportas' answer be stricken and that the Clerk entered default against Steven Delaportas (Dkt No. 133). 15. The Clerk entered default against Steven Delaportas On April 22, 2008 (Dkt No. 134). 16. Steven Delaportas is not a minor or incompetent person. 17. Northern Wisconsin's claims against Defendants are for a sum certain, as reflected in the Affidavit of Sum Certain filed concurrently herewith. For the reasons stated above, Northern Wisconsin requests the entry of judgment against Steven J. Delaportas and Joanne Delaportas aka Joanne Guggino, husband and wife, and Ionian Foods, LLC, jointly and severally, as follows: Direct Damages: 1. Northern Wisconsin was damaged by the conversion of its cheese ($305,702.10).

Northern Wisconsin was also damaged by Defendants' tortious interference with Northern Wisconsin's contracts and business expectancies, the aiding and abetting Bertola's breach of fiduciary duties, and unfair competition by Ionian which damages total not less than

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$1,500,000.00 (i.e. 5 years x $300,000 profit each year). 2. Northern Wisconsin incurred damages in the amount of $39,400.00 as a result of

Ionian placing the stolen product into grocery store slots paid for by Northern Wisconsin. 3. Northern Wisconsin incurred damages in the amount of $245,000.00 for fees owed

to ML pursuant to the Agreement (as that term is defined in the Affidavit of Sum Certain). The direct damages are, in accordance with Rule 55(b), Fed.R.Civ.P., a sum certain, or a sum which can by computation be made certain. The total of these damages is $2,090,102.10 (i.e. $305,702.10 plus $1,500,000.00 plus $39,400.00 plus $245,000.00). Interest on Direct Damages: In addition to all the above direct damage amounts, Northern Wisconsin seeks interest on such sums at the federal rate of interest from February 15, 2001, until such damages are paid in full. Punitive Damages: 1. Ionian acted with an evil mind and Northern Wisconsin is therefore entitled to

punitive damages in the amount of $3,105,918.90 (9 times Northern Wisconsin's "hard damages" of $345,102.10, i.e. $305,702.10 stolen cheese plus $39,400.00 stolen slots). Interest on Punitive Damages: In addition to all the above punitive damage amounts, Northern Wisconsin seeks interest on such sums at the federal rate of interest from February 15, 2001, until such damages are paid in full. Attorneys' Fees and Costs: Northern Wisconsin seeks its attorneys fees and costs in an amount to be reflected in Northern Wisconsin's application for attorneys' fees and statement of costs, to soon be filed with the Court. This Motion is supported by the Affidavit of Sum Certain. A proposed form of Judgment is attached hereto as Exhibit A.

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For the reasons stated above, Northern Wisconsin requests that the Court enter the proposed Judgment lodged concurrently with this Motion.
COLLINS, MAY, POTENZA, BARAN & GILLESPIE, P.C.

By /s/ Daniel P. Collins 009055 Daniel P. Collins Attorneys for Plaintiff, Northern Wisconsin Produce Company, Inc. COPY of the foregoing mailed this 15th day of May, 2008 to: Honorable H. Russell Holland United States District Court 222 West 7th Avenue - #54 Anchorage, Alaska 99513 Ionian Foods, LLC Post Office Box 32770 Phoenix, Arizona 86064 Defendant Steven J. Delaportas Post Office Box 32770 Phoenix, Arizona 86064 Defendant Joanne Delaportas aka Joanne Guggino 15732 West Vale Drive Goodyear, Arizona 85338

/s/ Denine Downs

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