Gibbs International Inc v. Savino Del Bene USA Inc et al
| Gibbs International Inc |
| BPX Logistics LLC, Savino Del Bene USA Inc and BP Express LLC |
| 7:2020cv03583 |
| October 12, 2020 |
| US District Court for the District of South Carolina |
| Timothy M Cain |
| Personal Property: Other |
| 28 U.S.C. § 1332 |
| Both |
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| Filing 24 TEXT ORDER: On October 16, 2020, Defendant Savino Del Bene USA Inc. ("Savino") was served with the Summons, Complaint, and Plaintiff's Local Rule 26.01 Interrogatory Responses in this case. See (ECF No. #5 ). Accordingly, Savino's Answer was due on Friday, November 6, 2020. See id.; Fed. R. Civ. P. 12(a)(1)(A)(i). On Monday, November 9, 2020, Savino filed its Answer, (ECF No. #13 ), and Plaintiff filed the instant motion for entry of default against Savino, (ECF No. #10 ). The following day, Savino filed a motion for leave to file its Answer out of time, (ECF No. #15 ), and its response in opposition to Plaintiff's request for entry of default, (ECF No. #16 ). Pursuant to the court's text order (ECF No. 23 ), Savino's motion to file its Answer out of time (ECF No. #15 ) has been granted and Savino's Answer (ECF No. #13 ) has been accepted by the court. Plaintiff's request for entry of default is now ripe for review.Under Rule 55(a) of the Federal Rules of Civil Procedure, an entry of default is appropriate "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise[.]" "However, 'where a defendant appears and indicates a desire to contest an action, a court may exercise its discretion to refuse to enter default, in accordance with the policy of allowing cases to be tried on the merits.'" Norton v. Rosier, No. 7:14-CV-260-BO, 2016 WL 11662177, at *1 (E.D.N.C. June 28, 2016) (quoting Lee v. Brotherhood of Maintenance of Way Employees-Burlington N. Sys. Fed., 139 F.R.D. 376, 381 (D. Minn. 1991)) (declining to enter default against Defendant who filed its answer more than a month after the deadline); see also Dow v. Jones, 232 F. Supp. 2d 491, 495 (D. Md. 2002) (denying request for entry of default where defendant filed a motion to dismiss three days late). Here, Plaintiff filed its motion for entry of default the same day that Savino filed its Answer, which has now been accepted by the court. See (ECF Nos. #10 , #13 , 23 ). Thus, because Savino has not failed to plead or otherwise defend, entry of default under Rule 55(a) is not appropriate. Accordingly, Plaintiff's Request for Entry of Default (ECF No. #10 ) is DENIED. IT IS SO ORDERED. Entered at the direction of the Honorable Timothy M Cain on 11/30/20. (kmca) |
| Filing 23 TEXT ORDER: On October 16, 2020, Defendant Savino Del Bene USA Inc. ("Savino") was served with the Summons, Complaint, and Plaintiff's Local Rule 26.01 Interrogatory Responses in this case. See (ECF No. #5 ). Accordingly, Savino's Answer was due on Friday, November 6, 2020. See id.; Fed. R. Civ. P. 12(a)(1)(A)(i). On Monday, November 9, 2020, Savino filed its Answer, (ECF No. #13 ), and, the following day, Savino filed the motion currently before the court seeking leave to file its Answer out of time, (ECF No. #15 ).Pursuant to Rule 12(a)(1)(A)(i) of the Federal Rules of Civil Procedure, "[a] defendant must serve an answer... within 21 days after being served with the summons and complaint[.]" However, Federal Rule of Civil Procedure 6(b)(1)(B) provides that, "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time... on motion made after the time has expired if the party failed to act because of excusable neglect." "In determining whether a party has shown excusable neglect, a court will consider: (1) the danger of prejudice to the non-moving party; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Merely establishing these elements does not entitle a party to relief; rather, 'whether to grant an enlargement of time still remains committed to the discretion of the district court.'" Johnson v. Murphy ex rel. Munoz, C/A No. 4:10-cv-1494-RBH, 2011 WL 3099874, at *4 n.3 (D.S.C. July 22, 2011) (quoting Colony Apartments v. Abacus Project Mgmt., 197 Fed. App'x 217, 223 (4th Cir. 2006)) (internal citations omitted). Furthermore, "[t]he Fourth Circuit has long indicated that it has a strong preference that defaults be avoided and that claims and defenses be disposed of on the merits." Duckett v. SCP 2006-C23-202, LLC, 225 F. Supp. 3d 432, 436 (D.S.C. 2015).As noted above, Savino's Answer was due on Friday, November 6, 2020 and was filed on the next business day, Monday, November 9, 2020, followed by the present motion filed on November 10, 2020. Thus, the danger of prejudice to Plaintiff and the length of the delay are, at most, negligible. Additionally, Savino asserts that the filing delay occurred due to a clerical error regarding the date of service and was not the result of any bad faith or dilatory conduct. See (ECF Nos. #15 at 8; #15 -2). Therefore, the court finds that Savino's failure to timely file its Answer was due to excusable neglect and that permitting it to file its Answer out of time will not prejudice Plaintiff. Accordingly, the court GRANTS Savino's motion to file its Answer out of time (ECF No. #15 ), and the court accepts Savino's Answer (ECF No. #13 ) filed on November 9, 2020. IT IS SO ORDERED. Entered at the direction of the Honorable Timothy M Cain on 11/30/20.(kmca) |
| Filing 21 REPLY by BP Express LLC, BPX Logistics LLC to 19 Order,,,, Set Deadlines,,, . (Collins, David) |
| Filing 20 RESPONSE to Motion re #15 MOTION for Leave to File Answer Response filed by Gibbs International Inc.Reply to Response to Motion due by 12/1/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: #1 Exhibit A- Claim, #2 Exhibit B- Email Correspondence)(English, Gregory) Modified on 11/30/2020: to add descriptions to exhibits as provided by filing user (kmca). |
| Filing 19 TEXT ORDER. Jurisdiction in this matter is predicated upon diversity of citizenship pursuant to 28 U.S.C. 1332. Within ten (10) days of the date of this order, Defendants BPX Logistics LLC and BP Express LLC are to inform the court of the citizenship of all members for the purpose of determining whether the requirements of federal subject matter jurisdiction are satisfied. See 28 U.S.C. 1332; Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F. 3d 114, 121 (4th Cir. 2004) (holding that "[a limited liability company] is an unincorporated association, akin to a partnership for diversity purposes, whose citizenship is that of its members."). Entered at the direction of the Honorable Timothy M Cain on 11/16/20. (kmca) |
| Filing 18 Amended ANSWER to #1 Complaint, by BP Express LLC, BPX Logistics LLC.(Collins, David) |
| Filing 16 RESPONSE IN OPPOSITION by Savino Del Bene USA Inc to #10 Request for Entry of Default. **See ECF Doc. #15 for Exhibits (exhibits not re-filed to prevent duplicates on the docket). (kmca) Re-filed by clerk to add additional event listed. (kmca) (Main Document 16 replaced on 11/12/2020: to replace with corrected document (footnote size) as provided by filing user) (kmca). |
| Filing 15 MOTION for Leave to File Answer by Savino Del Bene USA Inc. Response to Motion due by 11/24/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: #1 Exhibit A. House Bill of Lading, #2 Affidavit Of Ines Rodriguez - Villamil, #3 Exhibit A. to Affidavit Process Serve Date of Service)No proposed order.(Lydon, Thomas) (Main Document 15 replaced on 11/12/2020: to replace with corrected document (footnote size) as provided by filing user) (kmca). |
| Filing 10 REQUEST FOR ENTRY OF DEFAULT by Gibbs International Inc. (Attachments: #1 AFFIDAVIT of Default on Defendant Savino Del Bene USA Inc)(kmca) Re-filed by clerk to correct event with corrected document as provided by filing user. (kmca) Modified on 11/10/2020: to correct document number (kmca). |
| Filing 14 Local Rule 26.01 Answers to Interrogatories by Savino Del Bene USA Inc.(Lydon, Thomas) |
| Filing 13 ANSWER to #1 Complaint, by Savino Del Bene USA Inc.(Lydon, Thomas) |
| Filing 12 NOTICE of Appearance by Thomas E Lydon on behalf of Savino Del Bene USA Inc (Lydon, Thomas) |
| Filing 9 Local Rule 26.01 Answers to Interrogatories by BP Express LLC, BPX Logistics LLC.(Houseal, Sean) |
| Filing 8 ANSWER to #1 Complaint, by BP Express LLC, BPX Logistics LLC. (Attachments: #1 Exhibit A - Standard Truckload Bill of Lading, #2 Exhibit B - Tariff)(Houseal, Sean) Modified on 11/16/2020: see #18 Amended Answer (kmca). |
| Filing 6 SUMMONS Returned Executed by Gibbs International Inc. BP Express LLC served on 10/26/2020, answer due 11/16/2020; BPX Logistics LLC served on 10/26/2020, answer due 11/16/2020. (Attachments: #1 Acceptance of Service)(English, Gregory) |
| Filing 5 SUMMONS Returned Executed by Gibbs International Inc. Savino Del Bene USA Inc served on 10/16/2020, answer due 11/6/2020. (Attachments: #1 Affidavit)(English, Gregory) |
| Filing 4 Summons Issued as to BP Express LLC, BPX Logistics LLC, Savino Del Bene USA Inc. (abuc) |
| Filing 3 Local Rule 26.01 Answers to Interrogatories by Gibbs International Inc.(abuc) |
| Filing 1 COMPLAINT against BP Express LLC, BPX Logistics LLC, Savino Del Bene USA Inc ( Filing fee $ 400 receipt number 0420-9400659.), filed by Gibbs International Inc. Service due by 1/11/2021 (Attachments: #1 Exhibit A - BPX Logistics Receipt)(abuc) |
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