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Wine & Canvas Development LLC v. Theodore Weisser and Christopher Muylle

United States District Court, S.D. Indiana, Indianapolis Division

December 31, 2014

WINE & CANVAS DEVELOPMENT LLC, Plaintiff,
v.
THEODORE WEISSER and CHRISTOPHER MUYLLE, Defendants. CHRISTOPHER MUYLLE and THEODORE WEISSER, Counter Claimants,
v.
WINE & CANVAS DEVELOPMENT LLC, Counter Defendant. CHRISTOPHER MUYLLE, Third Party Plaintiff,
v.
TAMARA SCOTT, DONALD McCRACKEN, and ANTHONY SCOTT, Third Party Defendants.

ORDER ON MOTION TO SET ASIDE DEFAULT

TANYA WALTON PRATT, District Judge.

This matter is before the Court on Defendant Theodore Weisser's ("Mr. Weisser") Motion to Set Aside Default (Filing No. 449), filed on November 26, 2014. For the reasons stated below, Mr. Weisser's motion is DENIED.

I. BACKGROUND

Although the procedural and factual background pertaining to this motion has been set forth in previous orders, a detailed summary in this Entry is instructive. The complaint in this matter was filed in state court in November 2011, and removed to federal court on December 2, 2011. Initially, Mr. Weisser was represented by counsel, however, his attorneys withdrew their appearance on October 4, 2012 and the Court directed the Clerk to add Mr. Weisser as a pro se litigant (Filing No. 48). During his self-representation, Mr. Weisser disregarded many Court Orders and procedures. In November 2012, Wine & Canvas Development LLC ("WNC") filed a motion for a more definite statement from Mr. Weisser, which the Court granted (Filing No. 112 at 3). Mr. Weisser has never complied with this Court Order. WNC's Amended Complaint asserted claims against Mr. Weisser and his entities YN Canvas CA LLC and Weisser Management Group LLC (Filing No. 36). Mr. Weisser filed an answer for himself, however, his entities never answered the Amended Complaint. Third-party counterclaims were filed against Mr. Weisser and his entities on June 18, 2013 (Filing No. 101). Mr. Weisser and his entities never responded to these third-party counterclaims. Because Mr. Weisser and his entities did not respond, WNC moved for an entry of clerk's default pursuant to Federal Rule of Civil Procedure 55(a) (Filing No. 131). On November 22, 2013, a Clerk's Entry of Default was entered against third-party counterclaim defendants Mr. Weisser and his entities (Filing No. 210). Default also was entered against Mr. Weisser's entities, but because Mr. Weisser had filed an answer to the amended complaint, default was not entered against him individually.

On January 22, 2013, the Court held a telephonic status conference in which the parties were to participate. Mr. Weisser failed to appear for the status conference, and the Court issued a show cause order regarding his failure to appear and participate (Filing No. 77). Mr. Weisser responded to the show cause order on February 11, 2013 (Filing No. 80). However, on April 21, 2014, the Court held a telephonic status conference in which the parties were to participate and again, Mr. Weisser failed to appear for the status conference (Filing No. 304).

WNC sought to depose Mr. Weisser in January 2013 and served him with a deposition notice and subpoena in December 2012. Mr. Weisser failed to appear for his deposition. Thereafter, WNC asked the Court to compel Mr. Weisser to appear for his deposition (Filing No. 84). Mr. Weisser did not file a response to WNC's motion. The Court granted WNC's motion to compel Mr. Weisser's deposition but denied an award of sanctions (Filing No. 92). The Court also ordered Mr. Weisser to cooperate in scheduling his deposition. Despite the Court's Order, Mr. Weisser ignored WNC's efforts to reschedule his deposition and failed to cooperate in discovery. Because Mr. Weisser refused to cooperate in scheduling the deposition, WNC again sought the Court's intervention, requesting sanctions and an order compelling the deposition (Filing No. 125). Mr. Weisser again did not file a response to WNC's motion. The Court denied the motion for sanctions because the deposition had not been rescheduled, so Mr. Weisser did not fail to attend a scheduled deposition (Filing No. 187). But the Court reminded the parties that the previous motion to compel had been granted concerning Mr. Weisser's deposition (Filing No. 187 at 2). The Court also warned Mr. Weisser that he could not avoid the discovery process simply by ignoring Plaintiffs' requests and advised him that his failure to appear for deposition could lead to sanctions, including a default judgment (Filing No. 187 at 2). Mr. Weisser appeared for the deposition on December 5 and 6, 2013.

WNC moved to dismiss the counterclaims of Mr. Weisser on July 25, 2013 (Filing No. 133). Mr. Weisser never responded to the motion to dismiss his counterclaims. The Court ruled on WNC's motion and dismissed Mr. Weisser's first counterclaim, but the second counterclaim survived dismissal (Filing No. 145 adopted by Filing No. 179 and Filing No. 184).

WNC then moved for summary judgment on Mr. Weisser's second counterclaim on February 21, 2014 (Filing No. 266). Again, Mr. Weisser did not respond to WNC's motion. The Court ruled on WNC's motion and entered summary judgment against Mr. Weisser on his second counterclaim, leaving him with no counterclaims against WNC (Filing No. 342).

In November 2012, the Court entered a case management order establishing deadlines for discovery, disclosures, and dispositive motions (Filing No. 59). Despite the Court's case management order, Mr. Weisser never filed a preliminary witness or exhibits list. Mr. Weisser never filed a final witness list or a final exhibits list. Mr. Weisser also disregarded the Court's order to file preliminary jury instructions, an issue instruction, and verdict forms in preparation for trial. Mr. Weisser did not participate with the other parties in attempting to file any joint instructions or verdict forms.

The Court held a final pretrial conference on October 22, 2014, as trial was scheduled to begin on November 17, 2014. The parties were ordered to appear and participate in the final pretrial conference. Mr. Weisser failed to appear and participate in the final pretrial conference. On October 22, 2014, the Court ordered Mr. Weisser to show cause within seven days, in writing, why he should not be sanctioned under Federal Rule of Civil Procedure 16(f) for his failure to appear (Filing No. 396). Mr. Weisser failed to timely respond in writing to the Court's Order and on November 10, 2014, the Court entered a default against him (Filing No. 408).

Also, on November 10, 2014[1], Mr. Weisser filed his pro se "Statement Regarding His Failure to Appear and Reasons He Should Not Be Sanctioned" (Filing No. 412). In that statement, Mr. Weisser indicated that he had attempted to call the Court two days prior to the final pretrial conference to ask permission to participate by telephone, but he was unable to reach a person who could make that determination. Id. He further stated that he was working a second job and had been working an additional 60 to 70 hours per week and could neither afford financially to appear in person or to miss the days of work. Id. He also advised the Court that he had recently changed his address, which may have resulted in a delay of his receipt of Court orders. Id.

This case proceeded to trial by jury on November 17, 2014 as scheduled, and the jury rendered a verdict on November 21, 2014. Mr. Weisser had made flight arrangements to attend the trial prior to the default entry, and he appeared on the second day of trial and testified on behalf of Christopher Muylle ("Mr. Muylle"). See Filing No. 449 at ECF p. 2. Thereafter, on November 26, 2014 Mr. Weisser retained counsel who entered an appearance on his behalf and filed the instant motion.

Additional facts will be added ...


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