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Enslein v. Di Mase

United States District Court, W.D. Missouri, Western Division

September 16, 2019

JERALD S. ENSLEIN, in his capacity as Trustee for Xurex, Inc., Plaintiff,
v.
GIACOMO E. DI MASE, et al., Defendants.

          ORDER AND OPINION ENTERING DEFAULT AGAINST DEFENDANTS DURASEAL PIPE COATINGS COMPANY LLC AND DURASEAL HOLDINGS, S.R.L. AS TO LIABILITY ON COUNTS I, II, AND III

          ORTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

         For the reasons stated below, the Court enters default against Defendants DuraSeal Pipe Coatings Company LLC (“DuraSeal Pipe”) and DuraSeal Holdings, S.r.L. (“DuraSeal Holdings”) on the issue of liability on Counts I, II, and III.

         I. BACKGROUND

         Plaintiff Jerald Enslein filed this lawsuit in 2016, alleging claims against nine individuals and three corporate entities. Relevant to this Order, the corporate entities are DuraSeal Pipe, a Missouri limited liability company; DuraSeal Holdings, an Italian company; and HDI, Holding Development Investment, S.A. (“HDI”), a Luxembourg company.[1] Doc. #236, ¶¶ 16- 17, 22; Doc. #237, ¶¶ 16-17, 22; Doc. #244, ¶¶ 16-17, 22; Doc. #274, ¶¶ 16-17, 22; Doc. #362, at 6; Doc. #364, at 13, 41-42.

         DuraSeal Pipe, DuraSeal Holdings, and HDI were initially represented by Spencer Fane LLP. In July 2017, Spencer Fane sought leave to withdraw due to, among other things, their clients' lack of “sufficient resources to continue to retain counsel, ” and the law firm's continued representation “would very likely result in financial hardship.” Doc. #65. DuraSeal Pipe, DuraSeal Holdings, and HDI consented to the motion, and the Court granted the motion. Doc. #65, at 2-3; Doc. #66.[2]

         Beginning in November 2017, attorneys from Rouse Frets White Goss Gentile Rhodes, P.C. entered appearances on behalf of DuraSeal Pipe, DuraSeal Holdings, and HDI. Docs. #123-24.[3] Rouse Frets remained counsel of record for the corporate entities, filing numerous motions and briefs. However, on July 12, 2019, approximately one month after the Court decided the parties' summary judgment motions, Rouse Frets filed a motion seeking to withdraw as counsel due to their clients' failure to pay a substantial amount of past due fees and expenses. Doc. #439. The Court expedited briefing on the motion due to the imminent pretrial filing deadlines, pretrial conference, and trial. Doc. #440. DuraSeal Pipe, DuraSeal Holdings, and HDI did not respond to the motion.

         On July 23, 2019, the Court granted Rouse Frets's motion to withdraw. Doc. #442. In its Order, the Court informed DuraSeal Pipe, DuraSeal Holdings, and HDI that they were not permitted to represent themselves. Id. at 2-3 (citations omitted). They were informed they “must secure legal representation before the pretrial conference is held in this matter. If legal representation is not secured by the corporate defendants, they may be subject to default judgment against them and in Plaintiff's favor.” Id. (citations omitted). In the same Order, the Court reminded DuraSeal Pipe, DuraSeal Holdings, and HDI that pretrial filings were due beginning on August 14, 2019, the pretrial conference was scheduled for September 11, 2019, and the trial would begin on November 4, 2019. Id. at 3 (citing Docs. #432, 437). The Court also stated it would “not alter or modify the scheduling order, and the pretrial conference and trial will not be postponed and all current deadlines shall remain in place.” Id.

         On August 20, 2019, the Court issued an Order reminding the parties of the pretrial conference set for September 11, 2019. Doc. #471. On September 4, 2019, the Court received a motion from Jose Di Mase, Giacomo Di Mase, DuraSeal Pipe, DuraSeal Holdings, and HDI seeking leave to appear at the pretrial conference telephonically or via video. Doc. #504. The motion was signed by Giacomo Di Mase on behalf of himself and signed by Jose Di Mase on behalf of himself and on behalf of DuraSeal Pipe, DuraSeal Holdings, and HDI. Id. at 2. The Di Mases, DuraSeal Pipe, DuraSeal Holdings, and HDI were listed as “pro se” on the motion. Id.

         On September 6, 2019, the Court issued its decision on the motion. Doc. #506. The Court granted Jose Di Mase and Giacomo Di Mase's request for leave to appear at the pretrial conference telephonically. Id. at 2. But the Court denied DuraSeal Pipe, DuraSeal Holdings, and HDI's request to appear telephonically. Id. The Court informed the Di Mases that because they were not attorneys, “[t]hey may NOT represent the corporate entities or file documents on behalf of the corporate entities.” Id. at 2. Regarding the pretrial conference, the Court reiterated its expectations and the ramifications of the corporate entities' decision not to secure counsel and participate:

To be clear, the corporate entities are not permitted to represent themselves. And, if they are not represented by counsel, the corporate entities may not attend or participate in the pretrial conference. Without representation, no one is permitted to speak on behalf of the corporate entities or carry out any order issued by the Court to the corporate entities. If they fail to secure counsel to represent them at the pretrial conference, the corporate entitles will be in violation of this Court's Orders, which will justify the Court entering a monetary judgment against them and in Plaintiff's favor.

Id. The Order was sent via the Court's e-filing system to Jose Di Mase and Giacomo Di Mase, emailed from the undersigned's staff to Jose Di Mase and Giacomo DI Mase, and mailed to the corporate entities.

         To date, DuraSeal Pipe, DuraSeal Holdings, and HDI have not filed their exhibit or witness lists (or any other pretrial filings). Docs. #174, 432. They have not engaged with the other parties in the process of stipulating to facts, foundation of exhibits, and admissibility of exhibits. On September 11, 2019, no attorney appeared at the pretrial conference on behalf of the corporate entities. During the hearing, in which Jose Di Mase (who signed on behalf of the corporate entities in the motion and who Rouse Frets identified as the person to receive filings on behalf of the corporate entities) participated, the Court stated it was inclined to enter default judgment against the parties who did not appear at the pretrial hearing. To date, DuraSeal Pipe, DuraSeal Holdings, and HDI remain unrepresented and have not filed anything since July 2019.

         II. DISCUSSION

         A. Counts ...


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