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Shandex Industrial Inc v. Vent Right Corporation and Mario J. Kaseda

December 7, 2011

SHANDEX INDUSTRIAL INC., PLAINTIFF,
v.
VENT RIGHT CORPORATION AND MARIO J. KASEDA, DEFENDANTS.



The opinion of the court was delivered by: Honorable Madeline Cox Arleo

REPORT AND RECOMMENDATION

BACKGROUND

On July 17, 2009, plaintiff, Shandex Industrial Inc. ("plaintiff"), filed the Complaint in Superior Court of New Jersey, Bergen County. On August 13, 2009, defendants, Vent Right Corporation ("Vent Right") and Mario J. Kaseda ("Kaseda"), (sometimes collectively "defendants") removed the action to this district court.

On August 18, 2009, the Court entered an Order, scheduling an initial conference for November 23, 2009. The August 18th Order directed, inter alia, the parties to exchange Fed. R. Civ. P. 26 disclosures and to serve written discovery. The August 18th Order further directed that all parties who were not appearing pro se must be represented by counsel. The August 18th Order emphasized that failure to comply with the terms therein may result in the imposition of sanctions.

On September 11, 2009, in lieu of filing an Answer, defendants filed a motion to dismiss or alternatively, to transfer venue. In light of the pending motion, the Court entered an Order on October 7, 2009, adjourning the November 23rd initial scheduling conference without date. By Order dated January 4, 2010, District Judge Walls denied defendants' motion.

On January 11, 2010, the Court entered an Order, rescheduling the initial conference for March 1, 2010. The January 11th Order highlighted that failure to comply with the terms therein may result in sanctions.

On January 22, 2010, defendants jointly filed an answer, asserted counterclaims, and filed a third-party complaint. On February 16, 2010, plaintiff filed an answer to the counterclaims.

On March 1, 2010, counsel for both plaintiff and defendants appeared at the conference. On March 4, 2010, the Court issued a Pretrial Scheduling Order, which set forth, among other things, deadlines for discovery. The Order also scheduled a telephone status/settlement conference for June 30, 2010. The Order further admonished that failure to comply with the Order would result in sanctions pursuant to Fed. R. Civ. P. 16(f) and 37.

On June 30, 2010, counsel for all parties participated in the telephone status/settlement conference. The Court scheduled a second telephone status/settlement conference for October 5, 2010, which was attended by counsel for all parties.

Thereafter, the parties attempted unsuccessfully to settle the case. On April 14, 2011, defense counsel, William Connell, Esq. ("Mr. Connell"), advised the Court of defendants' failure to respond to his letters, emails and phone calls, and their failure to pay his outstanding legal fees. On April 20, 2011, the Court issued an Order directing defense counsel to file a motion to withdraw as counsel. As such, on May 5, 2011, Mr. Connell, filed a motion to withdraw as counsel for defendants Vent Right and Kaseda, the basis of which was defendants' failure to respond or otherwise cooperate with preparing a defense, and failure to pay Mr. Connell's outstanding legal fees. On May 9, 2011, the Court granted Mr. Connell's motion and directed him to provide defendants with copies of the Order.

On July 5, 2011, this Court issued an Order directing parties to submit written case status letters on or before July 15, 2011.*fn1 On July 12, 2011, plaintiff's counsel submitted its status letter, noting defendants' failure to respond to outstanding discovery requests since Mr. Connell's withdrawal from the case. Neither defendant nor any counsel on their behalf submitted a status letter as directed.

On August 3, 2011, this Court entered an Order scheduling an in person status/settlement conference for September 19, 2011. All parties with settlement authority were required to attend. On September 19, 2011, only plaintiff's counsel appeared at the conference. No counsel or party appeared on behalf of either defendant.

On September 21, 2011, this Court entered an Order scheduling another in person status conference for October 4, 2011. The Order directed Kaseda to appear. As to corporate defendant Vent Right, the Court directed the company to have new counsel enter an appearance on its behalf by October 4, 2011, as a corporate entity cannot represent itself under applicable law. The Order also provided that if new counsel failed to enter an appearance on behalf of Vent Right by October 4, 2011, the Court would ask the District Judge to strike its Answer. This Court provided copies of the Order to Kaseda and to Vent Right's legal counsel by regular and certified mail.*fn2

On or about September 27, 2011, the mailed copies of the Order were returned as undeliverable to both Kaseda and Vent Right's legal counsel. On September 28, 2011, the Court ...


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