VILVIG CNDUROLD 1] UNITED STATES DISTRICT COURT | SOUTHERN DISTRICT OF NEW YORK NO. 1:24-CV-05102 | MOTION TO SET ASIDE DEFAULT 3|5|2 CAPITAL GPLLC, on behalf of 3|5|2 CAPITAL ABS MASTER FUND LP, and | LEUCADIA ASSET MANAGEMENT. LLC. USDC SDNY 5 DOCUMENT | Plaintiffs, | ELECTRONICALLY FILED 6 | DOC #: 004 : vs. | DATE FILED: 11/19/ g]| RYAN WEAR, TYLER SADEK, JORDAN | CHIRICO, JEREMY BRIGGS. WATER 9| STATION MANAGEMENT LLC, __| REFRESHING USA, LLC, CREATIVE 10 TECHNOLOGIES LLC, C3 CAPITAL, INC. | a | REVL CAPITAL, INC, REVL CAPITAL | MANAGEMENT LLC, REVL SECURITITIES | 2 | LLC, CREATIVE TECHNOLOGIES | FLORIDA, LLC, WATERSTATION 13| TECHNOLOGY II LLC, WATERSTATION | _,|| FINANCE COMPANY LLC, 14) WATERSTATION TECHVENTURE LLC. 15] WST FRANCHISE SYSTEMS LLC, WST AZ | PROPERTIES, LLC, WSM CAPITAL 16 FUNDING, INC, WS SPV 1 LLC, | REFRESHING ARIZONA LLC, REFRESHING! CALIFORNIA LLC, REFRESHING | CAROLINAS LLC, REFRESHING | COLORADO LLC, REFRESHING FLORIDA 19] LLC, REFRESHING GEORGIA LLC, REFRESHING GREAT LAKES, 20 | LLC, REFRESHING GREAT PLAINS, LLC, | REFRESHING KENTUCKY, LLC, 21 | REFRESHING LAS VEGAS, LLC, ,,| REFRESHING MID-ATLANTIC oe | LLC, REFRESHING MIDWEST 23 | LLC, REFRESHING MIDWEST REAL | ESTATE LLC, REFRESHING MONTANA 24 | LLC, REFRESHING NEW ENGLAND, | LLC, REFRESHING NEW MEXICG 25 | LLC, REFRESHING OHIO LLC, | REFRESHING TEXAS, LLC, REFRESHING *°| UTAH LLC, REFRESHING USA MERGER __| 27
1] □□□ LLC, REFRESHING WASHINGTON, LLC, VENDPRO LLC, BEVTECK 2|| TECHNOLOGIES, LLC, 3 SUMMIT MANAGEMENT SERVICES LLC, | IDEAL PROPERTY INVESTMENTS, LLC, 4 IDEAL INDUSTRIAL PARK LLC, IDEAL AZ | PROPERTY INVESTMENTS LLC, 2129 54 ANDREA LANE LLC, 3209 VAN BUREN LLC, ICE & WATER VENDORS, LLC, K-2 ACQUISITIONS, LLC, K-2 MFG LLC, SMOKEY POINT HOLDINGS, LLC, PISTOL INC, EMERTY DEVELOPMENT LLC, gi ARIZONA WATER VENDOR INCORPORATED, 1118 VIRGINIA STREET 9 LLC, 11519 SOUTH PETROPARK LLC, TCR | PLUMBING LLC, FLAGSTAFF PLUMBING 10] LLC, 70 NORTH GARDEN AVENUE LLC, ll 701 EDEN LLC, AURORA BUILDING PRODUCTS, LLC, 3422 W CLARENDON 12) AVELLC, 1206 HEWITT AVE LLC, GOLDEN STATE VENTURES, LLC, GOLDEN STATE | i3 VENDING, LLC, VALLEY VENDING, LLT, | DRINK UP VENTURES, LLC, and JOHN | 141 DOES 1-1000 15 | Defendants. | i7| 18 | RYAN WEAR RESPECTFULLY REQUESTS THAT THE COURT SET ASIDE DEFAULT. | 19 BACKGROUND: 20 | oa | i. The Piaintiff had filed a case in the Superior Court of State of Washington, County of Snohomish, Case number 24-2-05545-31, after this case in the United States District ag Court, Southern District of New York. sete | 2. When Defendant realized that the matter was still active in this Court, Exhibit A was 24 immediately filed, on October 21* 2024 at 7:41 AM PST, to notify the Court that there were bankruptcy filings. At the time, Defendant believed the bankruptcy cases stayed 25 | all actions in the Court for all parties. 26 |
I 3. Atalater date Defendant wasinformed thet the stay onls: existed for the entities in bankruptcy and that a default would be ordered if a response to the Complaint was not 2 filed. The response, marked as Exhibit B, was filed immediately on October 23" 2024 i at 11:34 AM PST.
4 4. The Defendant was not aware that a Notice of Appearance was required after a | Response to the Court had been filed.
| 5. Ata later date, the Defendant was provided the following caption: 4 | “ORDER denying as moot 51 Motion to Dismiss; denying as moot 54 Motion to Dismiss; denying as moot 57 Motion to Dismiss; denying as moot 73 Motion to 8 Dismiss. IT IS HEREBY ORDERED that the motions te dismiss currently pending in this case (Dkts. 51, 54, 57, 73) are DENIED as moot. All Defendants (including Mr. Weal, Wild aiiSweicu lie Uiigiiial Coniplaiiit Tale? Vial WGVillg 1 UisiiSS, SéE DKT. $6) | must answer or otherwise respond to the Amended Complaint not later than Monday, 10 November 18, 2024. The Clerk of the Court is respectfully directed to close the open | motions at Dkts. 51, 54, 57, and 73, and to mail a copy of this order to Mr. Wear at | 2732 Grand Avenue Suite 122, Everett, WA 98201. SO ORDERED. (Signed by Judge 12 Valerie E. Caproni on 10/29/2024} (ig} Transmission to Docket Assistant Clerk for processing.”
6. Defendant read this and believed that all Defendants, including Ryan Wear, now had 14 until November 18" 2024 to respond to the Amended Complaint and all other actions 15 were dismissed. i6 7. Defendant received an email today, November 14™ at 9:13 AM PST, from multiple parties, that included the Defendants and Plaintiff counsels, sharing notes for presenting | the joint Status Letter expected to be submitted to the Court tomorrow. This was the 2 first time the Defendant had read the Joint Status Letter. After reviewing the letter, the 18 Defendant noted that a Notice of Appearance was required by the Court. The 19 | Defendant immediately filed a Notice of Appearance today at 12:49 PM PST, marked | as Exhibit C and then provided a copy to all parties that were on the Joint Status Motion 30 thread. Zi 8. At roughly 4:30 PM PST, the Detendant retrieved a letter that the Court had sent requesting a Notice of Appearance be submitted by November 4" 2024. This is included in this motion as Exhibit D. This was the first time the Defendant had seen 73 | this request and Order, which prompted this Motion. The mail was significantly delayed as Defendant had checked mail on Tuesday November 12" and the letter was 24 not present at that time. Please note that the envelope was stamped by the Post Office i on November 6" 2024, 2 days after the deadline for filing the Notice of Appearance. . CONCLUSION:
I
1. Under FRCP 55(c ), there is good cause for the delay as mail was not received until 2 today, Defendant had previously answered the complaint and there is no prejudice to y | any other party. . | 2. Defendant, Ryan Wear, requests that the Default status be set aside due to the reasons 4 | outlined in this motion.
5 | Dated 11/14/2024 Respectfully submitted, 6 | /s/Ryan Wear Ryan Wear | Pro Se 8 14717 27" Avenue NW Marysville WA 98271 rwear1000@gmail.com 9 | 425-244-0350 10 Application DENIED AS MOOT. None of the Defendants is currently in default. In light 1 | of the filing of the Amended Complaint on October 29, 2024 (Dkt. 91), the Court extended the deadline for all Defendants to move to dismiss the Amended Complaint to Wednesday, 12 December 11, 2024 (Dkt. 96). If Mr. Wear or any other Defendant wishes to answer the Amended Complaint rather than move to dismiss, they must do so by that date. The 13 | deadline for Plaintiffs to move for an order to show cause why default judgment should not be entered against any non-answering or non-appearing Defendants has been adjourned to | Wednesday, December 18, 2024 (Dkt. 98). Mr. Wear is reminded that he may appear pro se on behalf of himself only. As the Court 16 | noted in its October 28, 2024, Order (Dkt. 87), a corporation or other business entity cannot | _| proceed pro se in federal court; it can only appear in federal court if it is represented by an | attorney. Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); see Rowland v. Ca. Men’s 18 Colony, Unit II Advisory Council, 506 U.S. 194, 201-02 (1993). If he has not done so already, the Court again encourages Mr. Wear to review the resources available for pro se 19 litigants in this District, including the Federal Pro Se Legal Assistance Project run by the 20 | City Bar Justice Center. An overview of these resources is available on the Court’s website at https://www.nysd.uscourts.gov/prose.
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VILVIG CNDUROLD 1] UNITED STATES DISTRICT COURT | SOUTHERN DISTRICT OF NEW YORK NO. 1:24-CV-05102 | MOTION TO SET ASIDE DEFAULT 3|5|2 CAPITAL GPLLC, on behalf of 3|5|2 CAPITAL ABS MASTER FUND LP, and | LEUCADIA ASSET MANAGEMENT. LLC. USDC SDNY 5 DOCUMENT | Plaintiffs, | ELECTRONICALLY FILED 6 | DOC #: 004 : vs. | DATE FILED: 11/19/ g]| RYAN WEAR, TYLER SADEK, JORDAN | CHIRICO, JEREMY BRIGGS. WATER 9| STATION MANAGEMENT LLC, __| REFRESHING USA, LLC, CREATIVE 10 TECHNOLOGIES LLC, C3 CAPITAL, INC. | a | REVL CAPITAL, INC, REVL CAPITAL | MANAGEMENT LLC, REVL SECURITITIES | 2 | LLC, CREATIVE TECHNOLOGIES | FLORIDA, LLC, WATERSTATION 13| TECHNOLOGY II LLC, WATERSTATION | _,|| FINANCE COMPANY LLC, 14) WATERSTATION TECHVENTURE LLC. 15] WST FRANCHISE SYSTEMS LLC, WST AZ | PROPERTIES, LLC, WSM CAPITAL 16 FUNDING, INC, WS SPV 1 LLC, | REFRESHING ARIZONA LLC, REFRESHING! CALIFORNIA LLC, REFRESHING | CAROLINAS LLC, REFRESHING | COLORADO LLC, REFRESHING FLORIDA 19] LLC, REFRESHING GEORGIA LLC, REFRESHING GREAT LAKES, 20 | LLC, REFRESHING GREAT PLAINS, LLC, | REFRESHING KENTUCKY, LLC, 21 | REFRESHING LAS VEGAS, LLC, ,,| REFRESHING MID-ATLANTIC oe | LLC, REFRESHING MIDWEST 23 | LLC, REFRESHING MIDWEST REAL | ESTATE LLC, REFRESHING MONTANA 24 | LLC, REFRESHING NEW ENGLAND, | LLC, REFRESHING NEW MEXICG 25 | LLC, REFRESHING OHIO LLC, | REFRESHING TEXAS, LLC, REFRESHING *°| UTAH LLC, REFRESHING USA MERGER __| 27
1] □□□ LLC, REFRESHING WASHINGTON, LLC, VENDPRO LLC, BEVTECK 2|| TECHNOLOGIES, LLC, 3 SUMMIT MANAGEMENT SERVICES LLC, | IDEAL PROPERTY INVESTMENTS, LLC, 4 IDEAL INDUSTRIAL PARK LLC, IDEAL AZ | PROPERTY INVESTMENTS LLC, 2129 54 ANDREA LANE LLC, 3209 VAN BUREN LLC, ICE & WATER VENDORS, LLC, K-2 ACQUISITIONS, LLC, K-2 MFG LLC, SMOKEY POINT HOLDINGS, LLC, PISTOL INC, EMERTY DEVELOPMENT LLC, gi ARIZONA WATER VENDOR INCORPORATED, 1118 VIRGINIA STREET 9 LLC, 11519 SOUTH PETROPARK LLC, TCR | PLUMBING LLC, FLAGSTAFF PLUMBING 10] LLC, 70 NORTH GARDEN AVENUE LLC, ll 701 EDEN LLC, AURORA BUILDING PRODUCTS, LLC, 3422 W CLARENDON 12) AVELLC, 1206 HEWITT AVE LLC, GOLDEN STATE VENTURES, LLC, GOLDEN STATE | i3 VENDING, LLC, VALLEY VENDING, LLT, | DRINK UP VENTURES, LLC, and JOHN | 141 DOES 1-1000 15 | Defendants. | i7| 18 | RYAN WEAR RESPECTFULLY REQUESTS THAT THE COURT SET ASIDE DEFAULT. | 19 BACKGROUND: 20 | oa | i. The Piaintiff had filed a case in the Superior Court of State of Washington, County of Snohomish, Case number 24-2-05545-31, after this case in the United States District ag Court, Southern District of New York. sete | 2. When Defendant realized that the matter was still active in this Court, Exhibit A was 24 immediately filed, on October 21* 2024 at 7:41 AM PST, to notify the Court that there were bankruptcy filings. At the time, Defendant believed the bankruptcy cases stayed 25 | all actions in the Court for all parties. 26 |
I 3. Atalater date Defendant wasinformed thet the stay onls: existed for the entities in bankruptcy and that a default would be ordered if a response to the Complaint was not 2 filed. The response, marked as Exhibit B, was filed immediately on October 23" 2024 i at 11:34 AM PST.
4 4. The Defendant was not aware that a Notice of Appearance was required after a | Response to the Court had been filed.
| 5. Ata later date, the Defendant was provided the following caption: 4 | “ORDER denying as moot 51 Motion to Dismiss; denying as moot 54 Motion to Dismiss; denying as moot 57 Motion to Dismiss; denying as moot 73 Motion to 8 Dismiss. IT IS HEREBY ORDERED that the motions te dismiss currently pending in this case (Dkts. 51, 54, 57, 73) are DENIED as moot. All Defendants (including Mr. Weal, Wild aiiSweicu lie Uiigiiial Coniplaiiit Tale? Vial WGVillg 1 UisiiSS, SéE DKT. $6) | must answer or otherwise respond to the Amended Complaint not later than Monday, 10 November 18, 2024. The Clerk of the Court is respectfully directed to close the open | motions at Dkts. 51, 54, 57, and 73, and to mail a copy of this order to Mr. Wear at | 2732 Grand Avenue Suite 122, Everett, WA 98201. SO ORDERED. (Signed by Judge 12 Valerie E. Caproni on 10/29/2024} (ig} Transmission to Docket Assistant Clerk for processing.”
6. Defendant read this and believed that all Defendants, including Ryan Wear, now had 14 until November 18" 2024 to respond to the Amended Complaint and all other actions 15 were dismissed. i6 7. Defendant received an email today, November 14™ at 9:13 AM PST, from multiple parties, that included the Defendants and Plaintiff counsels, sharing notes for presenting | the joint Status Letter expected to be submitted to the Court tomorrow. This was the 2 first time the Defendant had read the Joint Status Letter. After reviewing the letter, the 18 Defendant noted that a Notice of Appearance was required by the Court. The 19 | Defendant immediately filed a Notice of Appearance today at 12:49 PM PST, marked | as Exhibit C and then provided a copy to all parties that were on the Joint Status Motion 30 thread. Zi 8. At roughly 4:30 PM PST, the Detendant retrieved a letter that the Court had sent requesting a Notice of Appearance be submitted by November 4" 2024. This is included in this motion as Exhibit D. This was the first time the Defendant had seen 73 | this request and Order, which prompted this Motion. The mail was significantly delayed as Defendant had checked mail on Tuesday November 12" and the letter was 24 not present at that time. Please note that the envelope was stamped by the Post Office i on November 6" 2024, 2 days after the deadline for filing the Notice of Appearance. . CONCLUSION:
I
1. Under FRCP 55(c ), there is good cause for the delay as mail was not received until 2 today, Defendant had previously answered the complaint and there is no prejudice to y | any other party. . | 2. Defendant, Ryan Wear, requests that the Default status be set aside due to the reasons 4 | outlined in this motion.
5 | Dated 11/14/2024 Respectfully submitted, 6 | /s/Ryan Wear Ryan Wear | Pro Se 8 14717 27" Avenue NW Marysville WA 98271 rwear1000@gmail.com 9 | 425-244-0350 10 Application DENIED AS MOOT. None of the Defendants is currently in default. In light 1 | of the filing of the Amended Complaint on October 29, 2024 (Dkt. 91), the Court extended the deadline for all Defendants to move to dismiss the Amended Complaint to Wednesday, 12 December 11, 2024 (Dkt. 96). If Mr. Wear or any other Defendant wishes to answer the Amended Complaint rather than move to dismiss, they must do so by that date. The 13 | deadline for Plaintiffs to move for an order to show cause why default judgment should not be entered against any non-answering or non-appearing Defendants has been adjourned to | Wednesday, December 18, 2024 (Dkt. 98). Mr. Wear is reminded that he may appear pro se on behalf of himself only. As the Court 16 | noted in its October 28, 2024, Order (Dkt. 87), a corporation or other business entity cannot | _| proceed pro se in federal court; it can only appear in federal court if it is represented by an | attorney. Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); see Rowland v. Ca. Men’s 18 Colony, Unit II Advisory Council, 506 U.S. 194, 201-02 (1993). If he has not done so already, the Court again encourages Mr. Wear to review the resources available for pro se 19 litigants in this District, including the Federal Pro Se Legal Assistance Project run by the 20 | City Bar Justice Center. An overview of these resources is available on the Court’s website at https://www.nysd.uscourts.gov/prose. 21] Additionally, to maximize efficiency and to ensure that he sees all docketed items in a 22 | timely manner, the Court encourages Mr. Wear to consider registering to receive 73 | documents electronically using the Pro Se Office's consent form, available at https:// www.nysd.uscourts.gov/sites/default/files/pdf/proseconsentecfnotice-final pdf. 24 | SO ORDERED. 25 | □ 26 | \Vnhenr sn 27 HON. VALERIE CAPRONI | UNITED STATES DISTRICT JUDGE