United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION AND ORDER
C. KEESLER UNITED STATES MAGISTRATE JUDGE
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
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).
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.
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).
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).
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.
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.
THE FOREGOING REASONS, the undersigned respectfully
recommends that pro se Plaintiffs "Motion"
for Default Judgment (Document No. 10) be DENIED
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.
IS FURTHER ORDERED that Defendants shall
SHOW CAUSE why they should not be sanctioned
for failure to comply with this Court's "Order"