United States District Court, W.D. North Carolina, Charlotte Division
C. KEESLER, UNITED STATES MAGISTRATE JUDGE
MATTER IS BEFORE THE COURT on
“Plaintiff’s Motion To Strike Pleadings And For
Entry Of A Default Against Defendant GC Equipment, LLC”
(Document No. 59) and “Globecore GmbH’s Motion To
Dismiss” (Document No. 61, p. 1). The parties have
consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C. §636(c), and these motions are ripe for
disposition. Having carefully considered the arguments, the
record, and the applicable authority, the undersigned will
grant the motions in part and deny the
motions in part.
Axxon International, LLC (“Plaintiff” or
“Axxon”) initiated this action with the filing of
its Complaint (Document No. 1) against Defendant GC
Equipment, LLC, doing business as Globecore GmbH, on July 20,
2017. GC Equipment, LLC (“GC Equipment”)
originally argued for dismissal based on insufficient process
and insufficient service of process pursuant to Fed.R.Civ.P
12(b)(4) and 12(b)(5) in a “Motion To Dismiss”
filed on September 5, 2017. (Document No. 12). GC Equipment
later withdrew its original motion to dismiss. (Document No.
November 20, 2017, GC Equipment filed a “Motion to
Dismiss, Answer, And Affirmative Defenses.” (Document
No. 21). GC Equipment’s Answer asserted for the first
time that there is a lack of personal jurisdiction. (Document
No. 21, p. 1). The Answer also asserted that GC Equipment
should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
(Document No. 21, p. 2).
parties consented to Magistrate Judge jurisdiction on
December 8, 2017, and this case was reassigned to the
undersigned. (Document Nos. 22 and 23). On January 31, 2018,
the Court issued a “Pretrial Order And Case Management
Plan” (Document No. 26). The “…Case
Management Plan” included the following deadlines:
discovery – September 24, 2018; mediation –
October 15, 2018; and dispositive motions - October 22, 2018.
March 20, 2018, Plaintiff filed an “Amended
Complaint” naming both GC Equipment and
Globecore GmbH (“Globecore”) as Defendants.
(Document No. 28).
Amended Complaint states that Plaintiff is a limited
liability company, organized and existing under the laws of
the State of North Carolina, with its principal place of
business in Rock Hill, South Carolina. (Document No. 28, p.
1). Plaintiff is “a wholesale supplier of medical
equipment and industrial machinery and fabrication, ”
providing “complete project management support for
local, state, and federal agencies.” (Document No. 28,
p. 4). Plaintiff’s members are Randy Lenz
(“Lenz”), Art Ward (“Ward”), and
Equity Investment Partners, LLC (“EIP”).
Amended Complaint describes GC Equipment as “a limited
liability company, organized and existing under the laws of
the State of California, with its principal place of business
in Los Angeles, California.” (Document 28, p. 2). GC
Equipment’s members are Dylan Baum (“Baum”)
and Richard Messina (“Messina”), both citizens of
Globecore “is a foreign corporation organized and
existing under the laws of Germany, with its principal place
of business in Oldenburg Eversten, Germany.”
Id. Plaintiff contends that Globecore “is a
transformer oil filtration equipment manufacturer that sells
and manufactures industrial equipment for the production of
bitumen and transformer oil purification and regeneration
across the country.” (Document No. 28, p. 4). GC
Equipment is Globecore’s “factory franchised new
equipment/material dealer with full parts, service, and
warranty capacity in the United States.” (Document 28,
entered into a contract (the “USACE Contract”)
with the U.S. Army Corp. of Engineers (the
“USACE”) on September 30, 2016, that was later
modified on October 17, 2017. Id. See also (Document
No. 28-1 and 28-2). Plaintiff then contracted with Globecore
through a “Purchase Order” in November 2016, to
provide an oil filtration system in fulfillment of
Plaintiff’s USACE Contract. (Document No. 28, p. 4)
See also (Document No. 28-3). “In order to
fulfill the USACE Contract, on November 8, 2016, AXXON
entered into an Agreement with GLOBECORE, whereby GLOBECORE
agreed to provide the Oil Filtration System referenced in
CLIN 001, in compliance with the specifications enumerated in
the USACE Contract.” (Document No. 28, ¶ 22)
(footnotes omitted). Baum, of GC Equipment, executed the
“Purchase Order” agreement as Globecore’s
authorized agent on November 9, 2016. Id. See also
(Document No. 28-3; Document No. 30, p. 6). The Globecore
Contract designates Globecore as “Vendor” and
provides an address in Dickinson, Texas. (Document No. 28-3).
Plaintiff paid a $20, 000.00 deposit in accordance with the
Globecore Contract to GC Equipment as the agent for
Globecore. (Document No. 28, p. 5).
to the Amended Complaint, this Court has in personam
jurisdiction over GC Equipment and Globecore because of their
“substantial and continuous contacts with the State of
North Carolina, including entering into a subcontractor
agreement with AXXON in North Carolina.” (Document No.
28, p. 2). Additionally, Plaintiff asserts that the Globecore
Contract “has a mandatory venue provision, which
requires that venue for any dispute shall be in North
Carolina.” Id.; see also, (Document
No. 23-3). Plaintiff maintains that GC Equipment “was
and is Globecore’s authorized agent to act on behalf of
Globecore, ” and acted as Globecore’s authorized
agent pertaining to the Purchase Order agreement. (Document
No. 28, pp. 2, 4). Plaintiff also asserts that GC Equipment
had “routine and continuous” contact with
Plaintiff in North Carolina regarding execution of the
underlying agreement(s). (Document No. 28, pp. 2-3).
Amended Complaint asserts claims for: (1) breach of contract
against Globecore; and (2) intentional interference with
contract against both GC Equipment and Globecore. (Document
No. 28, pp. 7-10). Plaintiff contends that GC Equipment and
Globecore “knowingly and willfully interfered with
Axxon’s contractual relationship with USACE.”
(Document No. 28, p.9).
“Amended Complaint” notes that it was filed with
opposing counsel’s written consent. (Document No. 28,
p. 1, n. 1). Moreover, on April 3, 2018, “Defendant GC
Equipment LLC’s Written Consent To Amend
Complaint” was filed with the Court confirming that GC
Equipment consented to allowing Plaintiff to amend its
Complaint, naming GC Equipment as a Defendant, on March 20,
2018. (Document No. 29). Neither the “Amended
Complaint, ” nor “Defendant GC Equipment
LLC’s Written Consent To Amend Complaint” suggest
that GC Equipment disputed the Court’s jurisdiction in
this matter. (Document Nos. 28 and 29).
GC Equipment LLC’s Motion To Dismiss, Answer, And
Affirmative Defenses In Response To Plaintiff’s Amended
Complaint” (Document No. 30) was also filed on April 3,
2018, and in that pleading GC Equipment again asserted
motions to dismiss pursuant to Fed.R.Civ.P. 12 (b)(2) and
12(b)(6). GC Equipment’s Answer acknowledges that
“during the time described in Axxon’s Amended
Complaint, GC Equipment acted as a manufacturer’s
representative and agent for GlobeCore.” (Document No.
30, pp. 4, 12). GC Equipment goes on to assert that it was
Axxon and GlobeCore that entered into the “Purchase
Order.” (Document No. 30, pp. 6, 9-10) (citing Document
GC Equipment LLC’s Motion to Dismiss for Lack of
Personal Jurisdiction” (Document No. 32) was filed on
April 17, 2018. GC Equipment sought dismissal of this action
pursuant to Fed.R.Civ.P. 12(b)(2), for lack of personal
jurisdiction. (Document No. 32). GC Equipment contended that
it is not subject to personal jurisdiction in North Carolina
because it lacks the requisite contacts with the forum state.
(Document No. 33, p. 7). The undersigned issued an
“Order” on July 6, 2018, denying without
prejudice “Defendant GC Equipment, LLC’s Motion
to Dismiss for Lack of Personal Jurisdiction” (Document
No. 32). (Document No. 39)
undersigned issued an “Order” (Document No. 43)
on August 17, 2018, granting “Defendant GC Equipment
LLC’s Motion To Vacate or Modify Pretrial Order And
Case Management Plan And To Stay Or. Suspend Discovery
Pending Service And Appearance By Defendant Globecore
GMBH” (Document No. 40). The Court stayed this matter
“until Defendant Globecore GmbH is served, or
December 18, 2018, whichever occurs
first.” (Document No. 43, p.1).
September 7, 2018, this Court received a letter from Dr.
Julia Bessonova, Director of Globecore GmbH, indicating that
Globecore received a copy of the Complaint on August 27,
2018, and stating that it “has no financial connection
with GC Equipment regarding this or any other
contract.” (Document No. 44). Plaintiff then filed a
“...Motion To Strike Defendant Globecore GMBH’s
Response, ” because it was not filed by licensed
counsel. (Document No. 45). The undersigned denied the motion
to strike without prejudice. (Document No. 46).
October 2, 2018, Plaintiff filed a “Notice Of Filing Of
Return Of Service Certificate” (Document No. 47)
confirming that the Amended Complaint was served on Defendant
Globecore GmbH on August 27, 2018. “Plaintiff’s
Motion For Entry Of Clerk’s Default Against Defendant
Globecore GMBH” (Document No. 48) was also filed on
October 2, 2018.
October 9, 2018, notices of appearance of Defendant
Globecore’s counsel, Nancy Black Norelli, Donna P.
Savage, and Keith A. Gross were filed with the Court.
(Document Nos. 48-51). The next day, Globecore’s
“…Answer And Motion To Dismiss For Lack Of
Personal Jurisdiction” (Document No. 53) was filed.
October 12, 2018, the undersigned denied
“Plaintiff’s Motion For Entry Of Clerk’s
Default…” and directed the parties to file
proposed revisions to case deadlines. (Document No. 54).
Based on a proposal by counsel for each party, the
undersigned re-set case deadlines on October 29, 2018,
including the following: Discovery Completion – June
24, 2019; Mediation Report – July 10, 2019; Motions
– July 19, 2019; and Trial – October 28, 2019.
(Document No. 56).
January 10, 2019, counsel for GC Equipment filed a
“Motion To Withdraw As Counsel” (Document No.
57). The motion states in part that “GC Equipment does
not want the undersigned counsel to pursue any further
defense on its behalf, with the understanding that the Court
may enter an adverse judgment against GC Equipment if
Plaintiff proves its claims against GC Equipment.”
(Document No. 57, p. 2). The “Motion To
Withdraw…” includes an “Affidavit In