Free Motion to Strike - 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

PLAINTIFF'S MOTION: (1) FOR ORDER STRIKING ANSWER; AND (2) ENTERING JUDGMENT BY DEFAULT AGAINST DEFENDANT IONIAN FOODS L.L.C.

Plaintiff, Northern Wisconsin Produce Company, Inc. ("Plaintiff" or "NWP"), by and through its attorneys, Collins, May, Potenza, Baran & Gillespie, P.C., hereby requests this Court enter its order striking the answer filed by defendant Ionian Foods L.L.C. ("Defendant") and enter judgment by default against Defendant based upon Defendant's failure to appear through an attorney in this case. This Motion is supported by the accompanying Memorandum of Points and Authorities and the entire record before the Court, all of which is incorporated herein by this reference.

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MEMORANDUM OF POINTS AND AUTHORITIES Background Plaintiff filed its complaint on November 25, 2002 ("Complaint"). Defendant filed its answer on February 11, 2003. At that time, Defendant was

represented by Alan Chaim Jablin ("Mr. Jablin"), Donald R. Day ("Mr. Day"), and Mr. Shanaberger all of the Michigan law firm of Cummings McClorey Davis & Acho, PLC. 3. On November 4, 2003, Mr. Shanaberger filed a motion for admission pro hac vice for

Defendant. The Court granted Mr. Shanaberger's Motion on November 18, 2003. 4. On June 23, 2005, Mr. Jablin and Mr. Day filed a motion to withdraw as counsel for

Defendant with a request that Mr. Shanaberger remain counsel of record. On July 12, 2005, the Court granted the motion and Mr. Jablin and Mr. Day were terminated as counsel of record. 5. On July 20, 2005, Mr. Shanaberger filed a notice of appearance on behalf of Defendant

and requested that all further pleadings, notices, and process should be served upon Mr. Shanaberger. 6. On April 6, 2007, the court entered an order to show cause why Mr. Shanaberger's

appearance as counsel of record for Defendant should not be stricken and Mr. Shanaberger precluded from any further participation as counsel in this case because. 7. On April 25, 2007, Mr. Shanaberger filed Defendants' Counsel's Response to Order to

Show Cause and Request for Permission to Withdraw as Defendants' Counsel. The Court granted Mr. Shanaberger's request to withdraw as counsel on May 10, 2007. 8. Defendant has not appeared in this case through an attorney since the Court ordered Mr.

Shanaberger could withdraw as counsel. POINT ONE JUDGMENT SHOULD BE ENTERED AGAINST DEFENDANT FOR FAILURE TO APPEAR IN THIS COURT THROUGH AN ATTORNEY Corporations and other unincorporated associations must appear in court through an attorney. In re America West Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994); C.E. Pope Equity Trust v. United States,

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818 F.2d 696, 697-98 (9th Cir.1987); Church of the New Testament v. United States, 783 F.2d 771, 77374 (9th Cir.1986); see also Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1309-10 (2d Cir.1991) (partnership not allowed to be represented by non-attorney partner). In this case, Defendant has failed to appear through counsel for nearly nine months. It is clear that Defendant does not intend to properly participate in these proceedings through an attorney. Accordingly, Defendant's answer should be stricken and judgment entered against Defendant. Liberty Mut. Ins. Co. v. Hurricane Logistics Co., 216 F.R.D. 14 (Dist.D.C. 2003) (if a corporate defendant does not retain counsel, the court may strike the corporation's answer); Varela v. Innovative Wiring Solutions, LLC, 2007 WL 4614838 (Dist.M.D.Fla. 2007). WHEREFORE, Plaintiff requests the Court: 1. Strike Defendant's Answer in this case; 2. Enter Judgment by default against Defendant; and 3. For such other and further relief as the Court deems just and proper under the circumstances of this case. Respectfully submitted this 1st day of February, 2008,
COLLINS, MAY, POTENZA, BARAN & GILLESPIE, P.C.

By /s/ Daniel P. Collins Daniel P. Collins Theodore P. Witthoft Attorneys for Plaintiff

(#009055)

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