Free Motion for Default Judgment - District Court of Delaware - Delaware

Case 1:04-cv-00399-GMS

Document 23

Filed 09/27/2007

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BBO LIQUIDATION CORP., as successor-ininterest to BROADBAND OFFICE, INC., Plaintiff, vs. DITTO COMMUNICATIONS TECHNOLOGIES INC. D/B/A DITTCOMM TECHNOLOGIES, and DONALD W. DITTO D/B/A DITTCOMM TECHNOLOGIES, Defendants. CIVIL CASE NO. 04-399 (GMS) Chapter 11 Case No. 01-1720 (BLS)

REQUEST FOR ENTRY OF DEFAULT BY CLERK OF THE COURT AND FOR ENTRY OF JUDGMENT BY DEFAULT PURSUANT TO FED. R. BANKR. P. 7055 AND FED. R. CIV. P. 55(a)(1) Plaintiff BBO Liquidation Corp. ("Plaintiff"), as successor-in-interest to BroadBand Office, Inc. ("BBO"), by and through Plaintiff's undersigned counsel, hereby files this request for the Clerk of the Court to enter a default against the defendant, DITTO
COMMUNICATIONS TECHNOLOGIES INC. D/B/A DITTCOMM TECHNOLOGIES ("Ditto") and DONALD W. DITTO D/B/A DITTCOMM TECHNOLOGIES ("Mr. Ditto"

and together with Ditto, the "Defendants") and for judgment upon such default pursuant to Fed. R. Bankr. P. 7055 and Fed. R. Civ. P. 55(a), and in support hereof respectfully states as follows:

#8907088 v1

Case 1:04-cv-00399-GMS

Document 23

Filed 09/27/2007

Page 2 of 3

1.

Plaintiff filed a complaint against Ditto on December 23, 2003, initiating the

above-captioned adversary proceeding in the United States Bankruptcy Court for the District of Delaware. Ditto, by counsel, filed an answer to the complaint on March 5, 2004. On June 18, 2004, the Court entered an order withdrawing the reference to the United States District Court for the District of Delaware. 2. The Court has entered a scheduling order (Docket No. 15) in which the Court,

inter alia, authorized Plaintiff to direct the Clerk of the Court to enter a default and judgment by default in accordance with Bankruptcy Rule 7055 against a party whose counsel withdraws its appearance, unless within thirty (30) days after the date of a motion or stipulation to withdraw is filed, new counsel for such party enters its appearance. 3. On September 16, 2005, upon motion of Ditto, Ditto's counsel of record

withdrew its appearance in this case. See Docket Nos. 16 and 17. To date, no new counsel has entered its appearance on behalf of Ditto. As such, pursuant to the terms of the

scheduling order, the Plaintiff is entitled to entry of default and default judgment against Ditto. 4. On January 26, 2006, the Court entered an order authorizing the Plaintiff to

file the First Amended Complaint pursuant to which Mr. Ditto was added as a party to this adversary proceeding. The Defendants were required to file an answer in response to the First Amended Complaint by February 16, 2006. To date, the Defendants have taken no action in this case. 5. Plaintiff therefore requests that the Clerk of the Court enter a default against

the Defendants. Plaintiff further requests that the Court enter a judgment on account of such

-2#8907088 v1

Case 1:04-cv-00399-GMS

Document 23

Filed 09/27/2007

Page 3 of 3

default in the amount sought in the Complaint in this case, $40,840.32, plus costs in the amount of $150. 6.
Upon information and belief, the Defendants are not (a) infants, (b) incompetent

persons, or (c) in the military service of the United States, any State or Territory thereof or its allies as defined in the Servicemembers Civil Relief Act.

WHEREFORE, Plaintiff respectfully requests that (i) the Clerk of this Court enter a default against the Defendants and (ii) the Court enter a money judgment in favor of BBO Liquidation Corp. against the Defendants in the amount of $40,840.32, plus costs in the amount of $150.00. Dated: September 27, 2007 Wilmington, Delaware Respectfully submitted, PEPPER HAMILTON LLP

/s/ Evelyn J. Meltzer David M. Fournier (DE No. 2812) Evelyn J. Meltzer (DE No. 4581) Hercules Plaza, Suite 5100 1313 North Market Street Wilmington, Delaware 19801 (302) 777-6500 telephone (302) 421-8390 facsimile Attorneys for Plaintiff, BBO Liquidation Corp.

-3#8907088 v1