United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE.
February 6, 2018, Plaintiff filed this civil action against
Defendant XCube Research and Development, Inc.
(“XCube”) and other individual Defendants. ECF
No. 1. Plaintiff amended the Complaint on February 20, 2018,
and then “supplemented” the Amended Complaint on
March 5, 2018. ECF Nos. 3, 6. After voluntarily dismissing
the cases against the individual Defendants, Plaintiff
successfully moved to amend the complaint again. ECF No.15.
Plaintiff now proposes a third Amended Complaint to add
Mikael Taveniku, XCube's “principal agent, ”
as a defendant. ECF No. 28.
pending before the Court is Plaintiff's third motion for
a temporary restraining order and preliminary injunction. ECF
No. 25. Plaintiff's first motion for a temporary
restraining order (“TRO”) was denied for failure
to provide notice or explain why notice should not be
required. ECF No. 7 at 3. Plaintiff's second motion for
injunctive relief was denied because Plaintiff failed to
sustain his burden of demonstrating that the equities
justified wholesale restraint of XCube's assets or that
such requested relief was in the public interest. ECF No. 14
at 3. As to Plaintiff's requested injunction to prevent
XCube from “destroying evidence, ” the Court
denied the motion for failure to demonstrate that such harm
was actual or imminent. Id. at 3-4.
has also moved for default judgment against XCube (ECF No.
20), summary judgment against XCube on one count (ECF No.
23), and exclusion of evidence at trial. ECF No. 27. The
Court now addresses each of these motions.
Motion for Default Judgment
Motion for Default Judgment (ECF No. 20) is procedurally
premature. Rule 55 of the Federal Rules of Civil
Procedure establishes a two-step process to obtain a default
judgment. The first step is that the party must seek
clerk's entry of default pursuant to Rule 55(a). After
the Clerk has entered default, the party may then seek entry
of default judgment pursuant to Rule 55(b). Wilson v.
Turner, No. ELH-13-3497, 2014 WL 4426126, at *1 (D. Md.
Sept. 2, 2014). Because the clerk's entry of default in
this case has not been entered, default judgment under Rule
55(b) must be denied.
entry of default under Rule 55(a), however, is appropriate.
XCube has failed to answer the complaint pending against it.
Instead, Taveniku, pro se, sought additional time to
retain counsel on behalf of XCube, which the Court granted.
The Court warned XCube, however, that XCube, as a
corporation, must be represented by counsel and only filings
submitted through counsel will be considered. ECF No. 18 at 1
n.1. Although XCube was granted until June 8, 2018 to retain
counsel, no counsel has entered an appearance on behalf of
the corporation. Accordingly, XCube has failed to plead or
otherwise defend this action, and so clerk's entry of
default under Rule 55(a) is appropriate. See Allied
Colloids, Inc. v. Jadair, Inc., No. 96-2078, 139 F.3d
887 (Table), 1998 WL 112719, at *1 (4th Cir. Mar. 16, 1998).
The Court directs the clerk to enter default under Rule
55(a). The Court also strikes Taveniku's
pro se pleadings filed on behalf of XCube (ECF Nos.
Third Motion for TRO and Preliminary
that Plaintiff's third motion for a TRO and
preliminary injunction (ECF No. 25) is governed by the
factors set forth in Winter v. Natural Resources Defense.
Council, Inc., 555 U.S. 7, 20 (2008), and “may
only be awarded upon a clear showing that the plaintiff is
entitled to such relief, ” id. at 22, the
motion once again must be denied. Plaintiff's recent
motion is almost identical to his previous requests for
injunctive relief. In fact, the most recent motion differs in
only two minor respects: Plaintiff currently asks the Court
to enjoin XCube from “destroying, disposing of,
maliciously altering, or transacting to remove from its
possession any of XCube's remaining assets and property,
including any intellectual property or trade
secrets” instead of simply “destroying,
disposing of, or operating its assets.” ECF
No. 25 at 1; ECF No. 13 at 1. Plaintiff also adds the
conclusory allegation that “if Defendant sells its
primary remaining assets, Plaintiff will have no adequate
remedy at law.” ECF No. 25 ¶16.
the fundamental deficiencies in Plaintiff's requested
relief have remained unchanged. Once again, Plaintiff seeks
wholesale restraint of all XCube's assets without regard
for how such relief would effectively cripple the
corporation. See Asset, Black's Law
Dictionary (10th ed. 2014) (defining asset as
“[t]he entries on a balance sheet showing the items of
property owned, including cash, inventory, equipment, real
estate, accounts receivable, and goodwill”).
Accordingly, as to the third Winter factor-balance
of equities-Plaintiff cannot demonstrate that the it is
equitable to restrain ex parte all corporate assets.
Nor do the equities tilt in Plaintiff's favor based on
the mere assertion that if Plaintiff were to prevail
at trial, XCube will have no assets to satisfy a money
judgment. In this respect, Plaintiff has not convinced this
Court that he is likely to succeed on the merits of his
claims and that, if successful, monetary relief does not
afford Plaintiff an adequate remedy. In short, Plaintiff has
failed to sustain his burden to justify the extraordinary
pretrial restraint he seeks.
Plaintiff's request to enjoin XCube from
“destroying evidence” is once again denied.
Plaintiff still fails to specify any other evidence in
Defendant's possession that may be destroyed if the Court
denies injunctive relief. ECF No. 7 at 4. Rather, Plaintiff
baldly asserts such a remedy is needed without even
attempting to address any of the Winter factors.
Plaintiff has not sustained his burden, and thus the Court
denies the motion.
Motion In Limine to Exclude Evidence at
motion in limine to exclude evidence at trial (ECF
No. 27) is premature. The parties have not yet begun
discovery, which commences only after this Court issues a
scheduling order. See Local Rule 104.4 (D. Md.
2016), http://www.mdd.uscourts.gov/local-rules. A motion
in limine to exclude evidence at trial is timely
filed only after discovery is closed, dispositive
motions on the merits have been decided, and surviving claims
are set for trial. If that day ever comes, the Court will set
a briefing deadline for in limine motions. Until
such deadline is set by the Court, no motion in
limine will be accepted. Plaintiff is forewarned
that any future similar motions will be summarily dismissed
without further notice. Accordingly, Plaintiff's motion
at ECF No. 27 is denied without prejudice to refile at the
Motion to Join Defendant and ...