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Surgeon v. Sharp

United States District Court, W.D. North Carolina, Charlotte Division

April 13, 2018

GARY SURGEON, Plaintiff,
v.
KELLY SHARP, AND HEYSHARP, LLC Defendants.

          MEMORANDUM AND RECOMMENDATION AND ORDER

          DAVID C. KEESLER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER IS BEFORE THE COURT on pro se Plaintiffs "Motion" for Default Judgment (Document No. 10). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b), and is now ripe for disposition. Having carefully considered the arguments, the record, and the applicable authority, the undersigned will respectfully recommend that the motion be denied.

         BACKGROUND

         Plaintiff Gary Surgeon ("Plaintiff or "Surgeon") initiated this action with the filing of a "Complaint" (Document No. 1) on October 25, 2016. Plaintiff alleges that Defendants Kelly Sharp ("Sharp") and HeySharp, LLC ("HeySharp") (together "Defendants") have conducted and participated in a deceptive marketing enterprise through patterns of racketeering activity, including: mail fraud, wire fraud, and use of interstate facilities to conduct unlawful activity. (Document No. 1, p.5). The Complaint and Summons were served on Kelly Sharp on December 21, 2016. (Document No. 6).

         On January 10, 2017, Defendant HeySharp filed an Answer and Counterclaim. (Document No. 7). The Answer is signed by Kelly Sharp. (Document No. 7, p.6). Notably, the Answer asserts that this Court lacks personal jurisdiction over HeySharp; that venue is improper; and that the Complaint fails to state a claim upon which relief may be granted. (Document No. 7, p.8). Plaintiff has failed to file a timely answer or otherwise respond to Defendant's Counterclaim.

         On or about August 2, 2017, the Court docketed a Notice of Lack of Prosecution. Then, on February 26, 2018, the undersigned issued an Order directing that Defendant HeySharp have its counsel file a Notice of Appearance and that the parties file a Certificate of Initial Attorney's Conference. (Document No. 9). The parties failed to respond to the Court's Order. Instead, Plaintiff filed the pending "Motion" seeking default judgment against Defendants on March 19, 2018. (Document No. 10).

         DISCUSSION

         Regarding the pending motion, the undersigned observes that Plaintiff has apparently failed to serve, or even attempt to serve, the motion on Defendants. See Fed.R.Civ.P. 5 and 55. Moreover, the undersigned is not persuaded that the pending motion provides adequate argument or authority to support the requested relief. See (Document No. 10). At most, the motion suggests that default judgment is appropriate against Defendant HeySharp because it has not had an attorney file a Notice of Appearance. Id. Plaintiff seeks an award of $5, 000.00, but offers no explanation or accounting for such alleged damages. Id. The Complaint does appear to specifically allege any amount of damages. (Document No. 1).

         In addition, based on review of the pleadings, the undersigned is concerned that Plaintiff has failed to establish that this Court has subject matter jurisdiction over this matter and/or personal jurisdiction over Defendants.

         Under the circumstances of this case, including several deficiencies in the filings and acknowledging the pro se status of the parties, the undersigned will require some clarification from both sides, as directed below.

         RECOMMENDATION AND ORDER

         FOR THE FOREGOING REASONS, the undersigned respectfully recommends that pro se Plaintiffs "Motion" for Default Judgment (Document No. 10) be DENIED WITHOUT PREJUDICE.

         IT IS ORDERED that Plaintiff shall SHOW CAUSE why this matter should not be DISMISSED for lack of subject matter jurisdiction and personal jurisdiction, on or before May 18, 2018.

         IT IS FURTHER ORDERED that Defendants shall SHOW CAUSE why they should not be sanctioned for failure to comply with this Court's "Order" ...


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