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Sociedade Dos Vinhos Borges S.A., Individually and As Assignee of the Rights of v. Rogerio Lopes Dos Santos

August 11, 2011


The opinion of the court was delivered by: Pisano, District Judge.



This action is brought by plaintiff Sociedade Dos Vinhos Borges S.A. ("Plaintiff"), individually and as assignee of JMV -- Jose Maria Vieira, S.A. ("JMV, S.A.") and JMV Food Service Canada, Ltd. ("JMV Canada"), against defendants Rogerio Lopes Dos Santos ("Santos"), Pedro Fernandes Soares ("Fernandes" or, alternatively, "Soares") and Lusitano Wine Imports, Inc. ("Lusitano Wine") (collectively, the "Defendants"). The complaint in this action asserts claims for Lusitano Wine's failure to make payment on certain invoices relating to wine, coffee and coffee-related products, as well as on a personal guaranty signed by Santos guaranteeing payment by Lusitano Wine on those and future invoices, and for passing bad checks in connection with those invoices (the "Collection Claims"). The complaint also asserts a claim for intentional interference with business relations (the "Tort Claim").

The complaint was filed on July 7, 2010, and the Clerk of the Court issued a summons on same day. The Defendants acknowledged service of process upon them through execution of separately written acknowledgements of service on September 18, 2010. The time for the Defendants to answer and appear in this action expired by operation of law on November 18, 2010. The Clerk of the Court entered default against the Defendants on December 2, 2010.

Plaintiff moved for default judgment on January 10, 2011, by attorney declaration, together with a factual affidavit of Catarina Coelho (the "Coelho Affidavit"), a member of the bar in the Republic of Portugal. The Coelho Affidavit attached and authenticated the invoices issued by Plaintiff to the Defendants for certain shipments of wine, coffee, and coffee related products, totaling the sum certain due of Seven Hundred Seventy Five Thousand Eight Hundred Fifty Seven Dollars and Fifty one Cents ($775,857.51) at the monetary exchange rate prevailing thereat. The Coelho Affidavit also attached multiple checks presented by the Defendants to Plaintiff and drawn on the Defendants' accounts, which were to have been in partial payment of the aforesaid debts, but were dishonored and rejected by the banks to which they were presented for collection upon the Defendants' accounts. The Coelho Affidavit further provided the personal guaranty of Santos of certain specific invoices among those aforesaid and of the payment of additional invoices thereafter issued.*fn1

The Defendants opposed Plaintiff's motion for default judgment and filed a cross-motion to vacate default entered by the Clerk of the Court. The Defendants failed to submit a proposed answer with their motion to vacate default, as required by Local Rule 7.1(f), until February 10, 2011, together with the Defendants' reply brief. Oral argument on the motion for default judgment and cross-motion to vacate default was held on May 16, 2011. The Court found that the Defendants failed to timely appear and answer and did not demonstrate "excusable neglect" or "good cause" for such failure. During oral argument, the Defendants conceded their failure to pay the amounts owing to Plaintiff. In addition, the Court rejected the Defendants' attempt to assert a right to credits or set-offs for "management fees." Thus, the Court found that the Defendants lack a meritorious defense to the claims asserted by Plaintiff. Accordingly, on May 23, 2011, the Court issued an order granting Plaintiff's motion for default judgment on the Collection Claims, denied Plaintiff's motion for default judgment on the Tort Claim, denied the Defendants' motion to vacate default judgment and entered judgment in favor of Plaintiff against the Defendants jointly and severally in the amount of $775,857.51, together with statutory costs and interest thereupon.

Presently before the Court is a motion by the Defendants to vacate judgment and allow the Defendants to file an answer, affirmative defenses, counterclaim and third party complaint.*fn2

Plaintiff opposes the motion. The Defendants move to vacate default judgment pursuant to Federal Rules of Civil Procedure 60(b)(1), (4) and (6).*fn3 In deciding this matter, the Court is mindful that default judgments are generally disfavored and "doubtful cases to be resolved in favor of the party moving to set aside the default judgment 'so that cases may be decided on their merits.' " United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 -- 195 (3d Cir. 1984) (quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245 (3d Cir. 1951)). Rule 60(b) allows a party to seek relief from a final judgment in a limited set of circumstances. Specifically, Rule 60(b) provides: "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...

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