Philip Morris USA Inc. v. Lee

243 F.R.D. 261, 2007 U.S. Dist. LEXIS 54744, 2007 WL 2084103
Procedural entryThis page is a short order in Philip Morris USA Inc. v. Lee. Read the opinion of the Court — 547 F. Supp. 2d 667
District Court, W.D. Texas·Decided July 23, 2007·No. No. EP-05-CV-490-PRM·Published

Opinion

ORDER REGARDING PLAINTIFF’S FILING OF VARIOUS DOCUMENTS ALLEGEDLY SUBMITTED BY DEFENDANT MOTOHIRO MIYAGI

MARTINEZ, District Judge.

On May 10, 2007, Plaintiff Philip Morris USA Inc. filed a document with the Court which it indicates that it received from Defendant Motohiro Miyagi. To this point, Mi-yagi has filed nothing with the Clerk of the Court, and Plaintiff asks the Court to accept the document as an answer and entry of appearance by Miyagi. Defendants John Tominelli and Southeastern Cargo Services, Inc. (“Southeastern”) subsequently filed an “Objection to Plaintiff Philip Morris USA Inc.’s Notice of Filing Answer from Motohiro Miyagi” on May 18, 2007. Therein, Tominelli [262]*262and Southeastern ask the Court to strike Plaintiffs filing and refuse to consider the document as an answer from Miyagi.

On June 4, 2007, Plaintiff filed a “Request for a Status Conference and Limited Protective Order,” in which Plaintiff indicated that Plaintiffs counsel also received three e-mails from Miyagi. Plaintiff asked the Court to conduct an in camera review of the e-mails, and sought guidance as to whether the emails should also be submitted to the record. In the event the Court admitted the documents, Plaintiff sought a protective order limiting their dissemination due to the contents of the e-mails. On June 14, 2007, the Court conducted a status conference regarding Plaintiffs request, at which time it invited additional briefing from the parties on the admissibility of the documents in question. Since then, Plaintiff has received two additional e-mails and provided all five to the Court. The Court has reviewed each of the documents allegedly provided to Plaintiff by Miyagi as well as the parties’ briefing.1 After due consideration, the Court is of the opinion that the initial document allegedly submitted by Miyagi should be construed as an appearance by Miyagi in this cause but that none of the six documents should now be admitted into the record.

I. WHETHER THE AFFIDAVIT PURPORTEDLY SUBMITTED BY MIYA-GI CONSTITUTES AN APPEARANCE

The Court looks first to the affidavit initially received by Plaintiff and allegedly submitted by Miyagi. The threshold issue before the Court with regard to the affidavit is whether the Court should accept the document and deem that it constitutes an appearance by Miyagi.

In various cases discussing Federal Rule of Civil Procedure 55(b)(2),2 the Fifth Circuit has indicated that an appearance “is not ... confined to physical appearances in court or the actual filing of a document in the record.” Sun Bank of Ocala v. Pelican Homestead and Sav. Assoc., 874 F.2d 274, 276 (5th Cir.1989). “ ‘[A]ppearanee is defined broadly ... to include a variety of informal acts on defendant’s part which are responsive to plaintiffs formal action in court, and which may be regarded as sufficient to give .plaintiff a clear indication of defendant’s intention to contest the claim.’ ” Id. (quoting 6 James Wm. Moore et al, Moore’s Federal Practice 1155.05[3]). The Fifth Circuit has generally required only that the defendant’s action “indicate in some way an intent to pursue a defense.” United States v. McCoy, 954 F.2d 1000, 1003 (5th Cir.1992). As such, that court has broadly construed the types of actions that constitute an appearance. See, e.g., New York Life Ins. Co. v. Brown, 84 F.3d 137, 142 (5th Cir.1996) (plaintiffs conversation with defendant’s lawyer in which plaintiff informed defendant “that he would not sign a stipulation and that he was attempting to retain counsel to contest the suit”); Sun Bank of Ocala, 874 F.2d at 276 (a motion to dismiss sent by defendant to plaintiffs lawyer); Charlton L. Davis & Co. P.C. v. Fedder Data Center, 556 F.2d 308, 309 (5th Cir.1977) (defendant made a phone call to plaintiff and sent a letter “responsive to plaintiffs formal Court action” (internal quotation omitted)). See also A.F. Dormeyer Co. v. M.J. Sales & Distrib. Co., 461 F.2d 40, 43 (7th Cir.1972) (an answer sent by defendant only to plaintiff constitutes an appearance).

Under that standard, the first document provided by Plaintiff should be treated as an appearance by Miyagi. The document, styled as an affidavit, responds to what it [263]*263labels the “so many un truth [sic]” of Plaintiffs Second Amended Complaint. Pl.’s Notice of Filing Answer, Ex. 1 at 1. The author proceeds to describe his role in the cigarette transaction underlying this cause, generally disputing various allegations of wrongdoing raised against Miyagi in Plaintiffs Second Amended Complaint. Id., Ex. 1 at 1-3. The document is thus responsive to Plaintiffs Second Amended Complaint and indicates Miyagi’s “intention to defend the suit.” Sun Bank of Ocala, 874 F.2d at 276.

Tominelli and Southeastern raise several objections to the Court’s consideration of the documents, but each is unavailing. First, they raise several procedural objections. They argue that the affidavit has not been notarized or otherwise authenticated, and thus it is not clear that the document is in fact from Miyagi. Defs.’ Obj. 1-2. The Federal Rules of Civil Procedure do not require notarization, and Defendants offer no basis or legal authority for presuming that the documents are inauthentic. The Court notes that the affidavit discusses the circumstances underlying this cause in depth, and the signature on the document appears to match Miyagi’s signature on various documents previously provided to the Court. Compare Pl.’s Suppl. Resp., Exs. 1-5, with id., Ex. 6. The Court is thus given no reason to question the document’s authenticity for the limited purposes of Miyagi’s entering an appearance. Second, Tominelli and Southeastern argue that statements in the affidavit indicate that Plaintiff failed to effect proper service of process under the Federal Rules of Civil Procedure. While Miyagi himself may challenge the sufficiency of service should he desire, the Court notes that a defendant may waive this defense, Fed. R.Civ.P. 12(h), and it is clear from the submitted affidavit that it was written in receipt of the Second Amended Complaint, see Pl.’s Notice of Filing Answer, Ex. 1 at 1 (affidavit stating that “Second Amended Complaint and Waiver of Service of Summons delivered to my ex-wife’s address in Paraguay was forwarded to me in Miami”). The potential insufficiency of service does not undermine the clear intention of the affidavit’s author to respond to Plaintiffs filing.

Tominelli and Southeastern then raise several objections based on the substance of the submitted affidavit.

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Philip Morris USA Inc. v. Lee, 243 F.R.D. 261, 2007 U.S. Dist. LEXIS 54744, 2007 WL 2084103 (W.D. Tex. 2007).

243 F.R.D. 261 (Philip Morris USA Inc. v. Lee) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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