United States District Court, W.D. Missouri, Western Division
ORDER DENYING PLAINTIFFS' RENEWED MOTIONS FOR
KAYS, UNITED STATES DISTRICT COURT JUDGE
case arises from an alleged scheme to defraud a group of
investors. Plaintiffs, a limited liability company and eight
individual investors based in Kansas City, Missouri, allege
the Defendants, who are based in the New York area, engaged
in fraud, misrepresentation, breach of fiduciary duty, and
breach of contract by failing to disclose crucial
information, embezzling from the company, and providing
before the Court are Plaintiffs' renewed motions for
default against Defendants Paul Amelio and David Katz (Docs.
60-61). For the following reasons, the motions are DENIED.
Defendants Paul Amelio and David Katz (collectively
“Defendants”) were served with the First Amended
Complaint on March 7, 2018. Defendants did not file an answer
or otherwise respond, and on May 29, 2018, Plaintiffs filed
motions for default against them (Docs. 16, 18). On June 26,
2018, Defendants late-filed motions to dismiss raising
various defenses. The Court subsequently denied the motions
for default (Doc. 43), noting Defendants were representing
themselves and had responded, albeit late, and that the law
preferred disposition of cases based on the merits and not
procedural missteps. Swink v. City of Pagedale, 810
F.2d 791, 792, n.2 (8th Cir. 1987) (finding the moving party
was not prejudiced by the district court's denial of a
motion for default judgment because “[t]here is a
strong public policy, supported by concepts of fundamental
fairness, in favor of trial on the merits”).
two procedural “detours” in the case where the
parties briefed issues concerning subject matter jurisdiction
and the corporate Defendant N2 Global Solutions, Inc.'s
failure to secure representation, Plaintiffs filed their
Second Amended Complaint (Doc. 52) on December 10, 2018.
Paul Amelio filed a response of sorts on January 14, 2019.
The Clerk of the Court deleted the response because it was
incorrectly filed and instructed him to refile it, which he
did not do until two weeks later.
January 30, 2019, Plaintiffs filed the pending renewed
motions for default. That same day, Defendant Paul Amelio
filed a motion (Doc. 62) for leave to file a response out of
time to the Second Amended Complaint, and he attached to it
his second motion to dismiss. He also attempted to file a
similar motion on Defendant Katz's behalf in an
attachment (Doc. 62-1). On February 13, 2019, Defendant Katz
filed a motion for leave to file out of time a response to
the Second Amended Complaint (Doc. 67), and a motion to
dismiss the Second Amended Complaint (Doc. 66).
Court previously noted, a defendant must answer or otherwise
respond within 21 days of being served with a complaint.
Fed.R.Civ.P. 12(a)(1)(A). While failure to answer can trigger
default, see Fed. R. Civ. P. 55(a), the law prefers
disposition of cases based on the merits and not procedural
missteps. Swink, 810 F.2d at 792. In the present
case, although Defendants have responded late, they have
responded. Additionally, while Plaintiffs argue that this
case has been on file since January 2, 2018, and that any
further delay will prejudice them, they are arguably
responsible for some of the delay in this case,
they have failed to articulate what this prejudice is.
Accordingly, the Court denies Plaintiffs' renewed motions
for default and grants Plaintiffs leave to late file their
various motions to dismiss.
said, given their history of repeatedly late-filing, the
Court cautions Defendants that going forward it will not
grant either of them leave to file anything out of time
absent extraordinary circumstances that can be verified by
IS SO ORDERED.