Filed: Feb. 07, 2017
Latest Update: Feb. 07, 2017
Summary: ORDER CATHY BISSOON , District Judge . At the onset, Defendants' Motion ( Doc. 23 ) to set aside default is GRANTED. Assuming, without deciding, that the moving Defendants properly have been served, their counsel entered an appearance and began defending this lawsuit no more than three days after Plaintiff first requested the entry of default. Compare Docs. 8, 9, 10 & 11 (requests for default) with Docs. 16 & 23 (defense counsel's entry of appearance and Motion to Set Aside Default).
Summary: ORDER CATHY BISSOON , District Judge . At the onset, Defendants' Motion ( Doc. 23 ) to set aside default is GRANTED. Assuming, without deciding, that the moving Defendants properly have been served, their counsel entered an appearance and began defending this lawsuit no more than three days after Plaintiff first requested the entry of default. Compare Docs. 8, 9, 10 & 11 (requests for default) with Docs. 16 & 23 (defense counsel's entry of appearance and Motion to Set Aside Default). ..
More
ORDER
CATHY BISSOON, District Judge.
At the onset, Defendants' Motion (Doc. 23) to set aside default is GRANTED. Assuming, without deciding, that the moving Defendants properly have been served, their counsel entered an appearance and began defending this lawsuit no more than three days after Plaintiff first requested the entry of default. Compare Docs. 8, 9, 10 & 11 (requests for default) with Docs. 16 & 23 (defense counsel's entry of appearance and Motion to Set Aside Default). This is not a "gotcha!" Court, and there are no legally-colorable claims of prejudice on the part of Plaintiff. See, e.g., KSure of New York Corp. v. Raineater, LLC, 2013 WL 5411933, *1 (W.D. Pa. Sept. 26, 2013) (denying motion for reconsideration of order setting aside default judgment, where opposing party's counsel appeared and began defending only three days after default judgment was entered; "the Court cannot condone legal strategies akin to `gotcha!' — style litigation, where parties [persist] based on technical errors, [rather than on] the merits of the case," and, "[w]hile such [tactics] may comport with common misperceptions . . . regarding how our legal system operates, it does not accurately reflect the serious work of the bench and bar") (citation to quotes sources omitted).1
This matter resolved, the Court must address the lack of diversity-of-citizenship revealed on the face of the Complaint. See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003) (the Court is required to address questions of subject matter jurisdiction "sua sponte," i.e., of its own accord). The pleadings allege that "Plaintiff is a citizen of the Commonwealth of Massachusetts, but was a citizen of the Commonwealth of Pennsylvania at the time of the incident." Compl. (Doc. 1) at ¶ 2(a). Regardless of whether Plaintiff, in the end, is a citizen of Massachusetts or Pennsylvania (and, he cannot under the law be both), diversity is lacking because one or more of the Defendants are alleged to be citizens of both of those states. Id. at ¶ 2(b) ("Defendant MAROADI is a citizen of the Commonwealth of Pennsylvania") and at ¶ 9 ("Defendant SHAMROCK . . . was organized and incorporated under the laws of the Commonwealth of Massachusetts"); Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 177 F.3d 210, 221 (3d Cir. 1999) (28 U.S.C. § 1332 requires "complete diversity between plaintiff[] and all defendants") (citation omitted).2
Based on the foregoing, Plaintiff hereby is ORDERED to show cause why this case should not be dismissed for lack of federal subject matter jurisdiction, and his deadline for responding to this show-cause Order is February 22, 2017.3 Furthermore, the Court has a hint of concern that this Plaintiff may have difficulty perceiving the distinctions between "zealous-advocacy," as properly employed under the American legal-model, and an improper willingness to say whatever he thinks it will take for him to "win." Cf., e.g., France v. PNC Fin. Servs. Grp., Inc., 2013 WL 3279772, *4 n.5 (W.D. Pa. June 26, 2013) (expressing disfavor for legal strategies that "degenerate into a strategy of, `say anything to win'"). Although the Court would be pleased to be proven wrong, Plaintiff hereby expressly is cautioned that the mandates of Federal Rule of Civil Procedure 11 apply with equal force to pro se litigants. See generally Fed. R. Civ. P. 11(b) (in signing court filings, pro se litigant certifies that factual assertions/denials are supported/warranted, and that his "legal contentions are warranted by existing law or by a nonfrivolous argument" for extending the same); see also generally Smith v. Psychiatric Solutions, Inc., 864 F.Supp.2d 1241, 1275 (N.D. Fla. Mar. 30, 2012) (among other things, Rule 11 invokes "[a] duty of candor to the court," which, if breached, may result in the imposition of monetary and/or other sanctions).
IT IS SO ORDERED.4