Gilmore v. Palestinian Interim

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REUVEN GILMORE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 01-853 (GK)
)
PALESTINIAN INTERIM SELF- )
GOVERNMENT AUTHORITY, et. al.,)
)
Defendants. )
MEMORANDUM OPINION
Plaintiffs, who are various family members of Esh Kodesh
Gilmore, the deceased victim of an alleged terrorist shooting in
Jerusalem, Israel on October 30, 2000, bring this action against
Defendants Palestinian Interim Self-Government Authority (“PA”) and
Palestinian Liberation Organization (“PLO”) under the Anti-
Terrorism Act of 1991 (“ATA”), 18 U.S.C. § 2331, et seq. On
January 29, 2007, after Defendants failed for nearly ten months to
file an Answer to Plaintiffs’ Complaint, this Court granted
Plaintiffs’ Motion to Enter Default against Defendants PA and PLO
[Dkt. No. 92]. This matter is presently before the Court on
Defendants’ Motion to Vacate Clerk’s Entry of Default [Dkt. No.
107] under Federal Rule of Civil Procedure 55(c). Upon
consideration of the Motions, Oppositions, Replies, and the entire
record herein, and for the reasons set forth below, the Motion to
Vacate is granted.
I. BACKGROUND
This action was filed on April 18, 2001 by various family
members and the estate of U.S. citizen Esh Kodesh Gilmore. Mr.
Gilmore was killed on October 30, 2000 in a shooting at the
National Insurance Institute--the equivalent of the United States’
Social Security Administration--in East Jerusalem. At the time of
his death, Mr. Gilmore was twenty-five years old, married, and the
father of an infant daughter. Plaintiffs allege that the shooting
was planned and carried out by a terrorist cell consisting of
officers in a PA security unit known as “Force 17” and members of
the armed PLO faction known as “Tanzim.” Plaintiffs also allege
that the cell was operated and controlled by Defendants PA and PLO.
See Complaint ¶¶ 17-30.
The instant Motion follows years of protracted filings in this
case. The first default was entered against Defendants PA and PLO
on December 20, 2001 [Dkt. No. 18], after Defendants failed to file
a timely Answer. On January 29, 2002, more than five months after
service and forty days after entry of the default, Defendants filed
a Motion to Vacate Default, which was granted “in light of the
strong preference in this jurisdiction for rulings on the merits,
and in the absence of any prejudice suffered by Plaintiffs.” April
17, 2002 Order [Dkt. No. 28]. Defendants had also filed a Motion
to Dismiss with their Motion to Vacate, which--due in part to the
many requests made by both parties for leave to file additional
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briefs and for extensions of time,1 and due in part to the demands
of the Court’s calendar--was not decided until March of 2006.
March 7, 2006 Order [Dkt. No. 73]. The Motion to Dismiss was
granted as to certain individual Defendants no longer named in this
case, and denied as to Defendants PA and PLO.
On April 24, 2006, after the Motion to Dismiss was denied,
Defendants filed an Answer through their attorney, Maher Hanania.
At a December 5, 2006 status conference, Defendants’ other counsel,
Ramsey Clark, then informed the Court that Mr. Hanania had filed
the Answer without proper authorization from Defendants, that he
had since been fired by Defendants, and that Defendants intended to
proceed without responding to the Complaint, but would raise post-
judgment challenges on jurisdictional grounds. Defs.’ Mot. to
Vacate at 8-9 [Dkt. No. 107]. After Mr. Hanania confirmed that he
lacked the proper authority to file an Answer, Plaintiffs’ Motion
to Strike the Answer from the record was granted. Minute Order of
January 7, 2007. Thus, by January 2007--ten months after the
Motion to Dismiss was denied with respect to Defendants PA and
PLO--no Answer had been filed and none was expected.
1
It is worth noting that, after being granted leave to
file a supplemental memorandum in support of their Motion to
Dismiss in September 2004 [Dkt. No. 59], Defendants filed
successive motions for extension of time that delayed briefing for
another three months. In addition, at the close of the extended
time granted Defendants, they failed to file their supplemental
memorandum.
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In light of these facts, a second default was entered against
Defendants PA and PLO on January 29, 2007. January 29, 2007 Order
[Dkt. No. 92]. The case was then referred to Magistrate Judge
Robinson for a hearing on damages. [Dkt. No. 92]. The hearing,
which was spread out between June and December 2007, lasted a total
of six days, and Defendants fully participated in it.
Defendants represent that, about the same time that the second
default was entered, Defendant PA--under the authority of President
Mahmoud Abbas and then-Finance Minister Salam Fayyad (who is
currently the Prime Minister)--consulted with the U.S. Department
of State on whether to appear in U.S. courts to defend against
suits such as this one. After being encouraged by U.S. Secretary
of State Condoleezza Rice to participate in legal proceedings,
Defendants committed to litigating the claims against them and
obtained new counsel in May 2007. Mot. to Vacate at 9. Prime
Minister Fayyad issued a declaration to that effect, noting that
“the importance of [litigating these cases] was not fully
appreciated by the PA government, as a whole, until recently.”
Declaration of Prime Minister Salam Fayyad at 3-4, Ex. C to Defs.’
Mot. to Vacate.
Six months later, in November 2007, after five of the six days
spent on the damages hearing but before Magistrate Judge Robinson
had reached any decision, Defendants filed the present Motion to
Vacate Clerk’s Entry of Default. The Court then requested the
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United States file a statement of interest regarding the issues
presented in Defendants’ Motion. The Government to declined to
file such a statement, and cautioned that no inference should be
drawn from its decision not to participate. Notice of the United
States [Dkt. No. 151].
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 55(c), a court “may set
aside an entry of default for good cause.” Fed. R. Civ. P. 55(c)
(“Rule 55(c)”). The court must balance three factors in evaluating
whether a party has demonstrated good cause: (1) whether the
default was willful; (2) whether a decision to set aside the
default would prejudice the plaintiffs; and (3) whether the
defendant has presented a meritorious defense. Keegel v. Key West
& Caribbean Trading Co., Inc., 627 F.2d 372, 373 (D.C. Cir. 1980),
Capital Yacht Club v. Vessel Aviva, 228 F.R.D. 389, 393 (D.D.C.
2005); see also Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir.
1980) (describing approach as requiring balancing of factors). In
applying this standard, all doubts shall be resolved in favor of
the party moving to set aside the default. Capital Yacht Club, 228
F.R.D. at 393.
While the decision to set aside an entry of default falls
within the Court’s sound discretion, in this Circuit there are
“strong policies favoring the resolution of genuine disputes on
their merits.” Jackson, 636 F.2d at 835. When the defendant is a
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foreign sovereign,2 default is especially disfavored because
“[i]ntolerant adherence to default judgments against foreign states
could adversely affect [the United States’] relations with other
nations and undermine the State Department’s continuing efforts to
encourage foreign sovereigns generally to resolve disputes within
the United States’ legal framework.” Practical Concepts, Inc. v.
Republic of Bolivia, 811 F.2d 1543, 1551 n. 19 (D.C. Cir. 1987).
III. ANALYSIS
First, the Court will consider, pursuant to Rule 55(c), the
Defendants’ willfulness, any prejudice resulting to Plaintiffs from
an order vacating the default, and any meritorious defenses
asserted by Defendants. Second, the Court will weigh the
significant public interest and foreign policy issues presented in
this case.
A. Defendants’ Default Was Willful
The first factor to be considered in determining whether there
is “good cause” for vacating a default is whether the defendant’s
conduct was willful. Because “[d]efault judgments were not
designed as a means of disciplining the bar at the expense of the
2
Although the United States does not recognize the
Palestinian Authority as a foreign sovereign, it continues to
maintain diplomatic relations with it and has actively encouraged
it to resolve disputes within the United States’ legal framework.
See Letter from Condoleezza Rice, U.S. Secretary of State, to
Mahmoud Abbas, President of the Palestinian Authority (Jan. 12,
2007), attached as Exhibit B to Defs.’ Mot. to Vacate. The
reasoning in Practical Concepts thus applies in this case.
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litigants’ day in court,” a finding of willfulness requires that
defendants, and not just their attorneys, were responsible for the
default. Jackson, 636 F.2d at 837.
Defendants argue that the political turmoil in the PA from
2004-2006 “directly impeded Defendants’ ability to act in as timely
and responsive a manner as the Court otherwise has a right to
expect.” Defs.’ Mot. to Vacate at 24. However, this explanation
is flatly contradicted by the record. As Defendants themselves
note in their Motion to Vacate, their counsel represented at the
December 5, 2006 status conference that Defendants had chosen not
to file an answer, and to file post-judgment jurisdictional
challenges; Defendants said nothing about political turmoil
preventing a decision from being made.3 Defendants offer no
support for their statement that “at crucial stages of the
litigation, defense counsel were unable to obtain clear
instructions about whether to limit the defense to jurisdictional
challenges or to defend on the merits.” Id. at 25.
Moreover, Defendants did not challenge the default in a timely
manner. The Motion to Vacate was filed eleven months after
Secretary Rice’s letter to Defendants, and six months after
3
Defendants’ counsel stated at the December 5, 2006 status
conference that, pursuant to the instructions he had received from
the PA and PLO, “we are not to appear or participate in any further
proceedings in the case. We will appeal on the decisions of the
court on jurisdiction when the case is over.” Pls.’ Opp’n at 8
(quoting Tr. 12/05/06 at 4).
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Defendants obtained new counsel. Defendants also waited until the
damages hearing--in which their new counsel fully participated--had
nearly concluded before raising this issue in their Motion to
Vacate.
Thus, this is not a case of mere delay, but a case where
Defendants’ deliberate litigation strategy was to refuse to defend
on the merits. Without deciding the broader issue of whether the
failure to file an answer in this case reflected a global legal
strategy, as Plaintiffs argue, it is clear that, at a minimum,
Defendants’ default in this case was willful. See Biton v.
Palestinian Interim Self-Government Authority, 252 F.R.D. 1, 2
(D.D.C. 2008) (finding that Defendants PA and PLO were willful in
second default because of earlier “deliberate choices,” despite
subsequent correspondence with Secretary Rice concerning decision
to litigate proceedings in U.S. courts).
B. Plaintiffs Will Be Prejudiced if the Motion to Vacate Is
Granted
Any prejudice to Plaintiffs resulting from vacatur of the
default must be considered as well. Delay in and of itself does
not constitute prejudice. Keegel, 627 F.2d at 374; KPS & Assocs.,
Inc. v. Designs By FMC, Inc., 318 F.3d 1, 15 (1st Cir. 2003).
Instead, “[t]he issue is . . . its accompanying dangers: loss of
evidence, increased difficulties of discovery, or an enhanced
opportunity for fraud or collusion.” Federal Deposit Ins. Corp. v.
Francisco Inv. Corp., 873 F.2d 474, 479 (1st Cir. 1989).
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In an effort to mitigate any prejudice to Plaintiffs,
Defendants have stipulated that the testimony from the damages
hearing can and should be utilized if the default is vacated, that
Plaintiffs will be reimbursed for “reasonable costs unnecessarily
incurred in the damages hearing,” and that Defendants will post a
$1 million bond, payable to Plaintiffs, if “after the Court vacates
the January 29, 2007 entry of default . . . the Defendants again
default.” Defs.’ Mot. to Vacate at 30-33.
Plaintiffs respond that prejudice will still result because
(1) a “crucial” witness--Force 17 commander Mahmoud Damara--has
become unavailable for deposition; (2) Defendant PA is only a
temporary governing authority incapable of binding a future
Palestinian state; and (3) the testimony given at the damages
hearing will become stale as a result of any further delay. Pls.’
Opp’n at 12-37.
Mr. Damara is currently in Israeli custody, although
Plaintiffs concede he could be made available for deposition.
Pls.’ Opp’n at 31. However, Plaintiffs argue that any deposition
testimony would be “utterly useless” at trial because it could not
be attributed to Defendants. Id. They offer no support for this
statement, or why the fact of his incarceration would affect
attribution of his testimony to Defendants. In sum, they fail to
explain why the deposition testimony of a man they claim to have
led the terrorist cell that shot and killed Mr. Gilmore would be
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“utterly useless” at trial. Given Plaintiffs’ close ties to legal
advocacy groups in Israel4 and their admission that a deposition is
possible, the Court very much doubts that Mr. Damara will prove
unavailable for such a deposition, and so finds no prejudice
stemming from his incarceration.
Plaintiffs also argue that, because Defendant PA is an interim
authority, it could cease to exist in the time it would take to
complete discovery and trial. Plaintiffs argue that the action
against Defendant PA would then be “pointless at best, and very
possibly summarily extinguished for lack of a defendant.” Id. at
35. This argument is totally speculative, especially since the
details of the relationship between the PA and any hypothetical
successor state are unknown, and so does not support a finding of
prejudice.5
4
Defs.’ Mot. to Vacate at 15-16.
5
Whether an independent Palestinian state would succeed to
the debts and obligations of the PA is a complicated question under
international law. Still, as a general rule, a successor state’s
liability for the debts and obligations of the predecessor state is
controlled by agreement between the two states or, in cases where
territory secedes from a state to form a new state, the debt of the
predecessor state is passed to the successor state in equitable
proportion. See Report of the International Law Commission to the
General Assembly, reprinted in [1981] 2 Y.B. Int’l L. Comm’n 2,
(Draft Articles on Succession of States in Respect of State
Property, Archives and Debts). Thus, it is far from clear that the
existence of an independent Palestinian state would foreclose the
possibility of Plaintiffs collecting any judgment against
Defendants PA and PLO.
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However, Plaintiffs’ last argument--that they will be
prejudiced because the testimony presented at the damages hearing
will become stale if proceedings are further delayed--is far more
persuasive. Findings of fact must be made “while the testimony is
fresh in the judge’s mind.” Advance Business Systems & Supply Co.
v. SCM Corp., 287 F.Supp. 143, 163 (D.Md. 1968). Defendants
trivialize the injury to Plaintiffs by assuming that the cold
written record made before the Magistrate Judge will have the same
meaning and impact to a fact-finder when read years later.
Defendants also ignore the enormous emotional cost to Plaintiffs
should they be forced “to undergo the excruciating process of
testifying about their loss all over again.” Pls.’ Opp’n at 37.
In light of the serious prejudice to Plaintiffs that would result
from their proceeding with stale testimony or undergoing the
wrenching process of testifying again, the Court concludes that
vacating the Motion to Default will prejudice Plaintiffs.
C. Defendants Have Raised Defenses Which, if Proven, Are
“Meritorious” within the Meaning of Rule 55(c)
A defense is meritorious if it “contain[s] even a hint of a
suggestion which, proven at trial, would constitute a complete
defense.” Keegel, 627 F.2d at 317; Candido v. District of
Columbia, 242 F.R.D. 151, 157 (D.D.C. 2007). Defendants deny that
they were responsible for the October 2000 shooting, and argue that
there is no reliable evidence linking them to this murder.
Defendants also argue that the shooting was not an act of
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“international terrorism” under the ATA, and so jurisdiction is
lacking.
Plaintiffs’ response goes to the merits of these defenses.
However, the actual merits are not at issue in a motion to vacate;
instead, they will be fully examined at trial. In any event,
“[w]hen moving to set aside a default, defendant is not required to
prove a defense, but only to assert a meritorious defense that it
may prove at trial.” Whelan v. Abell, 48 F.3d 1247, 1259 (D.C.
Cir. 1995). Defendants’ asserted defenses, if proven at trial,
would constitute a complete defense, and therefore are
“meritorious” within the meaning of Rule 55(c).
D. Foreign Policy and Public Interest Concerns
In addition to the three factors which have already been
discussed, the Court may, under Rule 55(c), also consider any other
“good cause” for setting aside a default. In this case, Defendants
argue that there are foreign policy concerns which weigh in favor
of granting them relief. Defs.’ Mot. at 3, 18-30. While the Court
is not convinced that Defendants have provided sufficient evidence
to support their claims that denial of their Motion would
significantly, and negatively, impact foreign policy in the Middle
East,6 there is an issue which is of great public concern, and is
6
It is fair to say that making any predictions about
developments in the Middle East is a risky and speculative
undertaking, far beyond the competence of federal judges.
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more concrete and far-reaching than speculation about an immediate
impact on events in that troubled area.7
The Middle East is now and has long been an area in which deep
hostilities and tensions exist between nations, ethnic groups, and
religions. Despite patient and prolonged efforts by many
governments (including our own), prominent individuals, and
international institutions, it has not proved possible to bring
peace and prosperity to the area as a whole. While those efforts
to achieve peace are quiescent at this time, negotiations have by
no means been abandoned. Given the long and violent history in
this area of the world, the Court is reluctant to take any action
that might hinder the progress of such negotiations, tedious and
drawn out as they have been, or to exacerbate existing tensions
between adversaries in the region who may now desire to defuse
those tensions.
7
The Executive Branch of the United States has been
particularly unhelpful in resolving this difficult Motion. The
Court requested that the State Department file a Statement of
Interest in order to understand the international ramifications of
any order it might enter, and to be apprised of our Government’s
position about such ramifications. In this case, as in Knox v. The
Palestinian Liberation Organization, 2009 U.S. Dist. LEXIS 56210,
*29 (S.D.N.Y. Mar. 26, 2009), the State Department declined to do
so. Instead it filed the identical mealy-mouthed Notice there as
it did in this case. That Notice, for all practical purposes, said
nothing and certainly provided no substantive guidance whatsoever
to the Court regarding the Government’s position or concerns about
any impact a decision might have on the delicate situation in the
Middle East.
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For example, Defendants claim that any large default judgment
against them will worsen their existing economic plight, with
consequences for the region as a whole. Plaintiffs claim that
there is no merit to Defendants’ description of their economic
crisis.8 This is simply untrue. Defendant PA relies heavily on
foreign aid, and “the economic situation in the Palestinian
territories is dire.” See Notice of the United States (noting
concern about “the potentially significant impact that these
default cases may have on the defendants’ financial and political
viability”); U.S. Dep’t of State, Press Conference with Palestinian
Authority Prime Minister Salam Fayyad, available at
http://www.state.gov/secretary/rm/2009a/july/126444.htm (Ex. 6 to
Defs.’ Reply) (describing budget support as “the very type of
external assistance [the PA] need[s] most”); European Commission,
European Union Assistance to the Palestinian Authority 2009 Budget
Reaches €207 Million (Oct. 8, 2009) (Ex. 7 to Defs.’ Reply)
(stating that “budget support from donors was equivalent to roughly
30% of [the PA’s] GDP in 2008”). Imposing a judgment on Defendants
which might well be for millions of U.S. dollars would only worsen
the existing economic situation, and might well heighten tensions
and animosities in the region.
8
According to Defendants, Plaintiffs are seeking well over
$4 billion in damages. That figure seems to be highly exaggerated.
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Plaintiffs allege that the PA and PLO are directly responsible
for the killing of Esh Kodesh Gilmore, and that his murder was part
of an official policy of terrorism and murder. Defendants
vigorously deny that they played any part in his killing, that they
provided any support to those responsible for it, or that they knew
anything about its planning. Both parties have presented evidence
in their Motion papers to support their contentions. None of this
evidence has been subjected to presentation in open court or the
glare of cross-examination. Given the far-reaching implications of
a public airing of the evidence, the Court concludes that it will
serve the interest of many segments of the public “to reach the
truth and set the record straight,” and that “such a course would
better comport with the ends of justice that reflect the greater
range of relevant concerns.” Knox v. The Palestine Liberation
Organization, 248 F.R.D. 420, 431-32 (S.D.N.Y. 2008).
In Knox, Judge Marrero identified those segments of the public
with an interest in learning the truth: “the interests of the
people whose welfare Defendants supposedly serve as empowered
representatives,” i.e., their constituents and “members of the
international community--including this country--which have
recognized Defendants as legitimate leaders of a governmental
entity.” Id. at 431. Judge Marrero noted that they “would be
interested in knowing whether the public institutions and officials
they have accorded their recognition and have dealt with at arms
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length are what they purport to be, and that any funds they
provided Defendants to support valid public purposes in the areas
within Defendants’ authority have been employed solely for the
intended use, and not, as Plaintiffs’ allegations suggest to
finance terrorism.” Id.Finally and most significantly, Judge Marrero concluded that
“there are many other persons who for various personal or
professional reasons may have some valid stake in the truth of the
historical record as regards the issues raised by Plaintiffs’
allegations in this case, including the general public’s right to
know the facts relating to matters of great moment that may affect
their own public or private interests.” Id. This Court is in
total agreement. Given “the transcendental scope of these issues
and interests, a judgment concerning such questions . . .
ordinarily should not be decided by default.” Id.For all these reasons, the Court concludes that there is a
strong public interest in permitting the parties’ claims to see the
light of day and face the oft-time harsh light of trial.
Therefore, on balance, vacatur is warranted under Rule 55(c), and
the Motion to Vacate Clerk’s Entry of Default is granted.9
9
Plaintiffs rely on a case in which the district court,
faced with a strikingly similar factual background, denied the
defendants’ motion to vacate. Biton v. Palestinian Interim Self
Government Authority, 252 F.R.D. 1 (D.D.C. 2008). While there are
indeed great similarities between these cases, the decision to
vacate an entry of default can be difficult and complex. District
(continued...)
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E. Minimizing Prejudice to Plaintiffs
Plaintiffs argue that if the default is set aside, this case
will drag on without end. Because Defendants have demonstrated a
commitment to bringing an end to litigation in other, similar
cases, this argument does not change the decision to grant
Defendants’ Motion. See Knox v. PLO, No. 1:03-cv-4466 (S.D.N.Y.
Oct. 22, 2009) (order noting that settlement agreement was
reached); Bucheit v. PLO, No. 1:00-cv-1455 (D.D.C. filed June 5,
2008) (giving notice that judgment against Defendants PLO and PA
has, finally, been fully satisfied).
Still, Plaintiffs’ concerns are not to be taken lightly--the
Court is keenly aware that they will suffer prejudice as a result
of this decision and the attendant delay. In addition, those cases
that have been resolved reached that point only after considerable
delay. See, e.g. Knox, 248 F.R.D. at 432-33 (discussing delays in
satisfying Bucheit judgment). Thus, there is some question as to
Defendants’ commitment to resolving this dispute.
Defendants have offered to reimburse the Plaintiffs for
reasonable costs, i.e., court costs and attorney fees, incurred as
a result of the default. Payment of such costs will be required
as a condition of granting the Motion.
9
(...continued)
Courts may reasonably disagree as to the correct outcome, as is
evidenced by other district court decisions which are in accord
with this Court’s analysis. See Saperstein v. Palestinian
Authority, 2008 WL 4467535 (S.D. Fla. Sept. 29, 2008).
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Defendants have also agreed that Plaintiffs need not testify
again and that their testimony from the damages hearing may be read
into the trial record. This too will be required as a condition of
granting the Motion.
Finally, Defendants have stated that they “do not believe that
any bond is necessary in this case for purposes of security,”
Defs.’ Mot. at 32, but “would agree to post a $1 million bond,
payable to the Plaintiffs if--after the Court vacates the January
29, 2007 entry of default so that the Defendants can litigate on
the merits--the Defendants again default.” The Court rejects both
parts of Defendants “offer” as flatly ridiculous.10
First, given the precariousness of Defendants’ economy and
finances, what may be the difficulties of collecting any judgment
if it is obtained, and the prejudice and delay that Plaintiffs will
suffer from the granting of Defendants’ Motion, there is absolutely
no question that Plaintiffs are entitled to posting of a
substantial bond.
Second, it is hard to believe that Defendants are suggesting
that this Court should wait until they default a third time before
imposing a bond. The preposterousness of this suggestion cannot
help but cast doubt upon the many pages Defendants spent in their
Motion and Reply assuring the Court that they had truly “changed
10
The Court is sorely tempted to describe Defendants’
“offer” as unmitigated “chutzpah,” but will refrain from doing so
in the interests of judicial formality.
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their spots” and would be litigating in an efficient, professional,
and good faith manner.
Parties acknowledge that the Court has “inherent power to
impose a reasonable condition on the vacatur in order to avoid
undue prejudice to the opposing party.” Capital Yacht Club, 228
F.R.D. at 395 (quoting Powerserve Int’l Inc. v. Lavi, 239 F.3d 508,
515-16 (2d Cir. 2001)); see also Thorpe v. Thorpe, 364 F.2d 692,
694 (D.C. Cir. 1966); Knox v. PLO, 2009 U.S. Dist. LEXIS 52610(S.D.N.Y. Mar. 26, 2009) (upholding magistrate judge’s decision to
require that Defendants post bond in similar case).
Given the past history of this case and the willfulness of
Defendants’ prior conduct, as well as the difficulties of
collecting any judgment if collection is fought, Defendants are
hereby ordered to post a bond in the amount of $1 million no later
than February 1, 2010, to demonstrate their good faith and to
protect Plaintiffs’ rights. An Initial Scheduling Conference will
be held on February 16, 2010, at 10:30 a.m.; Rule 16 Statements are
due at noon on February 11, 2010.
Third, and finally, the Court advises all parties that this
case will now proceed apace, that frivolous motions and “Rambo
tactics” will not be tolerated, that counsel will cooperate on
logistical and procedural matters, and that a firm trial date will
be set at the time of the Initial Scheduling Conference on February
16, 2010.
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IV. CONCLUSION
For the reasons set forth above, and subject to the posting of
a bond of $1 million, no later than February 1, 2010, Defendants’
Motion to Vacate Clerk’s Entry of Default is granted.
An Order will accompany this Memorandum Opinion.
/s/
December 28, 2009 Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
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