)
DANIEL PARISI, et al., )
)
Plaintiffs, )
)
v. ) No. 1:10-cv-00897-RJL
)
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair”, )
et al., )
)
Defendants. )
)
“plaintiffs”), hereby submit this reply to the response of defendants Lawrence W. Sinclair
(“Sinclair”) and Sinclair Publishing, Inc. (“SPI”) to plaintiffs’ motion for a default judgment
against SPI.1
ARGUMENT
SPI was served on June 7, 2010 (Dkt. No. 4). SPI did not timely file an answer within
the required 21 days, June 28.2 Despite having had 57 days to retain counsel, SPI has failed to
1
Plaintiffs filed their motion for a default judgment on July 8, 2010. (Dkt. No. 24).
Sinclair served an opposition on July 21, 2010 by email and mail and it was filed with the Court
on August 3. (Dkt. No. 37). On July 22, defendant Amazon.com, Inc. filed a response to the
motion for default. (Dkt. No. 30). Plaintiffs filed their reply to Amazon’s response on July 28.
(Dkt. No. 31). On August 3, Sinclair filed a purported “response” to plaintiffs’ reply to Amazon.
(Dkt. No. 38). A surreply is not permitted under Local Rule 7.
2
SPI argues that it filed an answer. (Dkt. No. 28; Dkt. No. 38 at 2). However, SPI is not
represented by counsel and Sinclair cannot appear on its behalf. See, e.g., Rowland v. Cal. Men's
Colony, 506 U.S. 194, 201-02 (1993); Jones v. Niagara Frontier Transportation Auth., 722 F.2d
Case 1:10-cv-00897-RJL Document 39 Filed 08/03/10 Page 2 of 6
do so. Sinclair has also indicated that there is no need for SPI to retain counsel to represent SPI.
Sinclair’s purported dissolution of SPI does not have the effect he believes it has and it is
irrelevant here. A dissolved corporation may be sued if so permitted under the law of the state of
incorporation. Fed. R. Civ. P. 17(b); Brown v. Sunrise Senior Living Servs., 2009 U.S. Dist.
LEXIS 71943, *4-5 (S.D. Fla. Aug. 7, 2009); Grguric v. Little Mermaid S., Inc., 2008 U.S. Dist.
LEXIS 30386, *5 (S.D. Fla. Apr. 10, 2008). “In particular, state corporate law determines the
suability of a dissolved corporation . . . .” Ripalda v. Am. Operations Corp., 977 F.2d 1464,
1468 (D.C. Cir. 1992) (citing Oklahoma Natural Gas Co. v. Oklahoma, 273 U.S. 257, 260
(1927) (capacity of dissolved corporation depends upon the corporate laws enacted by the state
that brought the corporation into being)). Here, SPI is undisputedly a Florida corporation.
(Dkt. No. 15 Ex. B). Florida’s corporation statute speaks to the effect of a dissolution. It
(e) Doing every other act necessary to wind up and liquidate its
business and affairs.
20, 22 (2d Cir. 1983); Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366 (Fed. Cir. 1983). Plaintiffs
motion to strike Dkt. No. 28 is pending (Dkt. No. 29).
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Fla. Stat. 607.1405 (emphasis added). “Undisputably, Florida law permits an aggrieved party to
sue a dissolved corporation.” Samples v. Conoco, Inc., 165 F. Supp. 2d 1303, 1319 (N.D. Fla.
2001) (citing Fla. Stat. § 607.1405); see also Grguric, 2008 U.S. Dist. LEXIS 30386, *6; Ron's
Quality Towing, Inc. v. Southeastern Bank of Florida, 765 So.2d 134, 135 (Fla. 1st DCA 2000).
In Brown, the Court ruled that the citizenship of a dissolved Florida corporation was relevant to
determining whether diversity of citizenship existed. 2009 U.S. Dist. LEXIS 71943, *4-5.
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The suggestion by Sinclair and SPI that the purported dissolution removes SPI as a party
or substitutes Sinclair personally for SPI is expressly contradicted by Florida law. Plaintiffs can
pursue their claims against SPI, even assuming arguendo that it has been dissolved.
Sinclair and SPI also claim that the summonses are defective because they supposedly
did not include a name and address for service of answers.3 Sinclair and SPI, however, were
well aware of the name and address of plaintiffs’ counsel. The name and address is set forth in
the complaint and in other documents filed with the Court to commence this case, and which
were personally served on Sinclair and SPI along with the summonses. (Dkt. Nos. 1, 2). On
June 7, 2010, the same day the summons and complaint was served, SPI posted the following on
its website:
Dan Parisi & Patton Boggs, LLP Have Filed Suit, Let The Ride
And Discovery Begin
(Dkt. No. 15 Ex. C; see also Ex. 1). Moreover, Sinclair and SPI also ignore the fact that they
communicated with plaintiffs’ counsel after service of the pleadings (see, e.g., Ex. 2), and served
3
“When an alleged defect in service is due to a minor, technical error, only actual
prejudice to the defendant or evidence of a flagrant disregard of the requirements of the rules
justifies dismissal.” Libertad v. Welch, 53 F.3d 428, 440 (1st Cir. 1995) (holding that District
Court erroneously dismissed claims where the summons failed to state the name of the person
served); see also Chan v. Society Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)
(“Technical defects in a summons do not justify dismissal unless a party is able to demonstrate
actual prejudice.”); Hobson v. Wilson, 737 F.2d 1, 45-46 (D.C. Cir. 1984) (dismissal for
defective service should be granted only when defendant was prejudiced); In re Pharmaceutical
Indus. Average Wholesale Price Litig., 307 F. Supp. 2d 190, 196 (D. Mass. 2004) (“Technical
defects in the form of the summons and the complaint do not invalidate an otherwise proper and
successful delivery of process under Fed. R. Civ. P. 4.”); FDIC. v. Swager, 773 F.Supp.
1244, 1249 (D. Minn. 1991) (“Technical defects contained within a summons do not justify
dismissal unless a party is able to demonstrate actual prejudice.”).
-4-
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their various court filings on plaintiffs’ counsel. (See, e.g., Dkt. Nos. 14, 23, 37, 38). This
argument does not provide any basis to deny plaintiffs’ motion for a default judgment.
Finally, Sinclair and SPI’s response to the default judgment motion does not oppose the
specific relief sought by plaintiffs to be included in the judgment -- damages against SPI in the
from its defamatory statements and its ownership of any assets, including copyrights. Without
any such opposition, no hearing is necessary to award the relief sought pursuant to Fed. R. Civ.
CONCLUSION
For all the foregoing reasons, plaintiffs’ motion for a default judgment against SPI should
be granted.
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CERTIFICATE OF SERVICE
I hereby certify that on August 3, 2010, a copy of the foregoing was served on counsel
for the parties that have appeared in the case by the Court’s ECF system and on the following by
email:
Lawrence W. Sinclair
9 Spring Drive
Port Orange, FL 32129
lsinclair@sinclairpublishingllc.com
s/ Richard J. Oparil
Richard J. Oparil (DC Bar No. 409723)
5109207