Free Order on Motion to Strike - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

NORTHERN WISCONSIN PRODUCE COMPANY, INC.,

) ) ) Plaintiff, ) ) vs. ) ) STEVE DELAPORTAS, JOANNE ) DELAPORTAS, and IONIAN FOODS, ) LLC, ) ) Defendants. ) ___________________________________)

No. 2:02-cv-2366-HRH

O R D E R Motion to Strike and Enter Default Plaintiff moves for an order striking the answer of defendant Ionian Foods, L.L.C., and for entry of default against that company.1 The motion is opposed by individual defendant Steven Oral argument has not been requested and is not

Delaportas.2

deemed necessary. Ionian Foods, L.L.C., had been represented in this case by counsel who, by order of May 10, 2007,3 was permitted to withdraw.

1

Docket No. 124. Docket No. 126. Docket No. 105. - 1 -

2

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The latter order4 unfortunately led Mr. Delaportas to believe that he had a choice of either obtaining counsel for Ionian Foods or appearing po se for that company himself. Mr. Delaportas filed a

notice of appearance in his own behalf and on behalf of Ionian Foods.5 Realizing that a mistake had been made, the court's

further order of July 2, 2007,6 was entered, explaining that a corporation must be represented by an attorney. Mr. Delaportas'

appearance on behalf of Ionian Foods was stricken. At the time of the foregoing matters, criminal proceedings were pending against Mr. Delaportas, and this case was long stayed because of those proceedings. By November 2, 2007, the court had

received advice from counsel for plaintiff that the criminal proceedings were concluded, and a status conference was scheduled for November 9, 2007.7 at the status Although Ionian Foods was not represented Mr. Delaportas stated that he

conference,

individually and on behalf of the company was desirous of settling this case. Negotiations were undertaken but were unsuccessful.

Subsequently, arrangements were made for a magistrate judge to assist the parties with a settlement conference. In a reply with

4

Id. at 2. Docket No. 108. Docket No. 109. Docket No. 113. - 2 -

5

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respect to the instant motion to strike,8 the court is advised that the settlement conference was held, but that it was unsuccessful.9 Although Mr. Delaportas is not entitled to speak for Ionian Foods with regard to the plaintiff's motion to strike, the court is not comfortable with the drastic action of striking Ionian Foods' answer without affording it a final opportunity to secure counsel. Both at the November status conference and in his response to plaintiff's motion to strike, Mr. Delaportas has expressed his acceptance and understanding of the proposition that Ionian Foods must be represented by counsel if it is to defend plaintiff's complaint. That said, Mr. Delaportas should understand that the

court is now and has been since last November suspicious of his motives here. interested in The court doubts that Mr. Delaportas is genuinely settling this case. The court believes that

Mr. Delaportas is stalling. In consideration of all of the foregoing, plaintiff's motion to strike and to enter default as to Ionian Foods is denied with leave to summarily renew that motion if an appearance of counsel on behalf of Ionian Foods has not been filed by March 14, 2008. Counsel for plaintiff shall take the lead in contacting other parties to arrange a status (scheduling) conference for 4:30 p.m.

8

Docket No. 127.

Plaintiff so characterizes the settlement effort. The United States magistrate judge's report to the court is not nearly so negative. See Minute Entry (Feb. 20, 2008), Docket No. 128. Plaintiff now confirms that the case has not settled. Plaintiff's Thirteenth Status Report, Docket No. 129. - 3 -

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on either March 25, 26, or 27, 2008.10

The court expects both

Mr. Delaportas and counsel for Ionian Foods (if that defendant is going to proceed in defending this case) to be available for this conference. The conference will be in chambers, Room 622, at the

Sandra Day O'Connor U.S. Courthouse, 401 West Washington Street, Phoenix, Arizona. DATED at Anchorage, Alaska, this 27th day of February, 2008.

/s/ H. Russel Holland United States District Judge

Counsel will please contact Marty Stafford (judicial assistant) at 907-677-6252 as soon as the date is agreed upon. - 4 -

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