Smith v. Nations Recovery Center, Inc.

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ SANDY SMITH, Plaintiff, vs. 1:19-CV-1229 (MAD/DJS) NATIONS RECOVERY CENTER, INC., Defendant. ____________________________________________ APPEARANCES: OF COUNSEL: AGRUSS LAW FIRM, LLC JAMES J. PARR, ESQ. 4809 N. Ravenswood Avenue Suite 419 Chicago, Illinois 60640 Attorneys for Plaintiff HORMOZDI LAW FIRM, LLC SHIREEN HORMOZDI, ESQ. 1770 Indian Trail Lilburn Road Suite 175 Norcross, Georgia 30093 Attorneys for Plaintiff BARRON, NEWBURGER LAW OFFICE ARTHUR SANDERS, ESQ. 30 South Main Street New City, New York 10956 Attorneys for Defendant Mae A. D'Agostino, U.S. District Judge: ORDER Plaintiff commenced this action on October 14, 2019, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). See Dkt. No. 1. On November 18, 2019, Defendant filed its answer. See Dkt. No. 10. On January 2, 2020, Plaintiff filed her notice of settlement and on January 3, 2020, the Court entered its Order of Dismissal by Reason of Settlement. See Dkt. No. 22. After Defendant failed to consummate the settlement, Plaintiff moved to reopen this case, which the Court granted on June 25, 2020. See Dkt. Nos. 24, 26. In telephone conferences with the Court, Defendant's counsel has indicated that Defendant is no longer in business and that Defendant's counsel has been unable to communicate with Defendant. Currently before the Court is Plaintiff's motion to strike Defendant's answer and for entry of default. When a defendant fails to engage in discovery or otherwise participate in litigation, courts

have routinely found it appropriate to strike their answer and enter default against that defendant. See Vargas v. Jet Peru-Courier Corp., No. 15-cv-6859, 2018 WL 1545699, *1 (E.D.N.Y. Mar. 14, 2018); Silverman & Silverman, LLP v. Pacifica Foundation, No. 11-cv-1894, 2014 WL 3724801, *4 (E.D.N.Y. July 25, 2014); Garis v. Gypsum Resources Materials, LLC, No. 2:16-cv- 2534, 2017 WL 7518924, *1 (D. Nev. Nov. 22, 2017) (holding that an answer may be stricken if the defendant fails to defend itself) (citations omitted). Given that Defendant failed to consummate the settlement agreement reached with Plaintiff and has since failed to participate in this litigation in any way since the Court was forced to reopen this matter, the Court finds that it is

appropriate to strike Defendant's answer and direct the Clerk of the Court to enter default against Defendant pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Accordingly, the Court hereby ORDERS that Plaintiff's motion to strike Defendant's answer and for Clerk's entry of default (Dkt. No. 27) is GRANTED; and the Court further ORDERS that the Clerk of the Court is directed to STRIKE Defendant's answer (Dkt. No. 10); and the Court further

ORDERS that the Clerk of the Court is directed to enter default against Defendant pursuant to Rule 55(a) of the Federal Rules of Civil Procedure; and the Court further 2 ORDERS that Defendant shall file its motion for default judgment within fourteen (14) days of the date that the Clerk of the Court enters default; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules. IT IS SO ORDERED. Dated: October 19, 2020 J), if 2 4 ea Albany, New York PLEO RT peg 4 Mae A. D’Agosting~/ U.S. District Judge