Filed: Nov. 13, 2014
Latest Update: Nov. 13, 2014
Summary: ORDER MAKING ABSOLUTE ORDER TO SHOW CAUSE ROBERT E. BLACKBURN, District Judge. This matter is before me on Plaintiff's Response to Courts Order To Show Cause [#380], 1 filed November 3, 2014, in response to my Order To Show Cause [#371], filed October 9, 2014. Plaintiff's response to that order fails to demonstrate any cogent basis on which to continue this lawsuit. The order therefore will be made absolute. I issued the show cause order because it appeared, inter alia, that plaintiff'
Summary: ORDER MAKING ABSOLUTE ORDER TO SHOW CAUSE ROBERT E. BLACKBURN, District Judge. This matter is before me on Plaintiff's Response to Courts Order To Show Cause [#380], 1 filed November 3, 2014, in response to my Order To Show Cause [#371], filed October 9, 2014. Plaintiff's response to that order fails to demonstrate any cogent basis on which to continue this lawsuit. The order therefore will be made absolute. I issued the show cause order because it appeared, inter alia, that plaintiff's..
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ORDER MAKING ABSOLUTE ORDER TO SHOW CAUSE
ROBERT E. BLACKBURN, District Judge.
This matter is before me on Plaintiff's Response to Courts Order To Show Cause [#380],1 filed November 3, 2014, in response to my Order To Show Cause [#371], filed October 9, 2014. Plaintiff's response to that order fails to demonstrate any cogent basis on which to continue this lawsuit. The order therefore will be made absolute.
I issued the show cause order because it appeared, inter alia, that plaintiff's remaining claims in this lawsuit were barred by limitations. (See Order To Show Cause at 3 [#371], filed October 9, 2014.) I therefore required that
[p]laintiff must direct the court to specific, particularized references in the Verified Complaint that demonstrate that these particular defendants . . . have taken specific actions, delineated in the Verified Complaint, within the period of limitations. Global, generalized references to "defendants" and other types of group pleading, which previously have been noted as inadequate to support the burden of pleading plausible claims for relief, will not suffice.
(Id. at 5 (emphases in original).)
Rather than comply with that directive, plaintiff instead directed the court to consider allegations of new conduct set forth in his Motion To Supplement the Original Complaint [#381], filed November 7, 2014, and the proposed supplemental pleading attached thereto, which he claimed asserted viable predicate offenses under RICO and COCCA within the statute of limitations. See United States v. Persico, 832 F.2d 705, 714 (2nd Cir. 1987), cert. denied, 108 S.Ct. 1995 (1988). I have found otherwise, however, and denied the motion to supplement. (See Order Denying Plaintiff's Motion To Supplement the Original Complaint [#384], filed November 13, 2014.) At a minimum, therefore, plaintiff has failed to establish that any of the claims currently pending in this action are not barred by limitations.
Moreover, the fact that the clerk has entered default pursuant to Fed. R. Civ. P. 55(a) against certain of the remaining defendants does cure this fundamental inadequacy in the operative pleading of failing to plead claims that are not time-barred:
When an application is made to the court under Rule 55(b)(2) for the entry of a judgment by default, the district judge is required to exercise sound judicial discretion in determining whether the judgment should be entered. . . . This element of discretion makes it clear that the party making the request is not entitled to a default judgment as of right, even when defendant is technically in default and that fact has been noted under Rule 55(a).
10A C. WRIGHT & A. MILLER, Federal Practice & Procedure § 2685 (3rd ed.) (internal footnotes omitted). See also De Santis v. City of New York, 2014 WL 228659 at *6 (S.D.N.Y. Jan. 22, 2014) ("[T]he defaulting defendant ... should not be burdened with a judgment on an insufficient complaint.") (citation and internal quotation marks omitted). Thus, even if plaintiff were to move for default judgments (which he has not),2 the court would not enter default judgments on his time-barred claims.
Accordingly, the court finds and concludes that plaintiff's remaining claims in this lawsuit must be dismissed as barred by limitations.
THEREFORE, IT IS ORDERED as follows:
1. That the Order To Show Cause [#371], filed October 9, 2014, is MADE ABSOLUTE;
2. That plaintiff's claims against the following defendants are DISMISSED WITH PREJUDICE: Heller Ehrman LLP; Richard S. Warley; Tina Louise Scatuorchio-Goodwin; Simon Luk; Russell A. Stamets; John c. Gonzalez; Kannan P. Srinivasan; Aran Ventures; Aran Development, Jonathan Martin Turco; Eric Vaughn Traut; Diana Biafora Sparagna; and Barra Partners, LLC (nominal defendant); and
3. That at the time judgment enters, judgment with prejudice SHALL ENTER on behalf of the following defendants against plaintiff, Jon A. Goodwin, on all claims for relief and causes of action asserted against them in this action: Heller Ehrman LLP; Richard S. Warley; Tina Louise Scatuorchio-Goodwin; Simon Luk; Russell A. Stamets; John c. Gonzalez; Kannan P. Srinivasan; Aran Ventures; Aran Development, Jonathan Martin Turco; Eric Vaughn Traut; Diana Biafora Sparagna; and Barra Partners, LLC (nominal defendant)
