Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Digital Broadcast Corporation v. Orsenman & Colin

April 15, 2004

DIGITAL BROADCAST CORPORATION, APPELLANT,
v.
ROSENMAN & COLIN, LLP, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-3977-99) (Hon. Susan R. Winfield, Trial Judge)

Before Ruiz, Associate Judge, and King and Kern, Senior Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge

Submitted April 26, 2001

Digital Broadcast Corporation, a former client of the law firm of Rosenman & Colin, LLP, appeals a default judgment against it in an action for non-payment of legal fees. The trial court entered a default against Digital Broadcast and denied its motion to reconsider for failure to show either good cause or a prima facie defense. After an ex parte hearing on damages, the court entered a judgment of default. Digital Broadcast appeals, alleging that the trial court abused its discretion. Finding no such abuse, we affirm.

I. Facts

Digital Broadcast hired Rosenman & Colin for legal services related to a securities offering from November 1997 to August 1998. On June 9, 1999, the law firm initiated this suit, alleging that Digital Broadcast did not pay $55,378 owed for those services.

Upon receipt of the complaint, the trial court scheduled an initial conference for September 10. On July 27, Digital Broadcast requested an enlargement of time to respond to the complaint of "20 days after the court rules on the intended motion pro hac vice" of its general counsel, John C. Nimmer, a Nebraska attorney. On August 27, Digital Broadcast *fn1 filed a motion to continue the initial conference in order to obtain local counsel, a requirement for Mr. Nimmer's admission pro hac vice. See Super. Ct. Civ. R. 101 (a)(3). On September 8, the trial court granted both requests; Digital Broadcast was given forty-five days (until October 22) to respond to the complaint, and the initial conference was rescheduled for October 29. On October 22, Digital Broadcast moved to admit Mr. Nimmer pro hac vice and sought a further twenty-day enlargement of time to respond to the complaint and for the initial conference, to be calculated from the date of Mr. Nimmer's admission. To demonstrate diligence in its search for the local counsel required for Mr. Nimmer's admission pro hac vice, Digital Broadcast attached two letters to its motion from attorneys declining to represent it, and requested that the trial court waive the requirement of local *fn2 counsel. On October 29, the initial conference took place as scheduled. Digital Broadcast had not responded to the complaint and failed to appear, and the trial court entered a default. *fn3

The court responded to Digital Broadcast's second (October 22) motion for an enlargement of time on November 2, 1999, granting Mr. Nimmer's motion for admission pro hac vice, waiving the requirement of local counsel, but denying its motion to continue as moot, "it appearing that a default has previously been entered."

On November 24, Digital Broadcast moved to set aside the default. It alleged that it had good cause not to appear because, under Superior Court Civil Rule 101 (a)(2), an attorney not admitted to practice before the District of Columbia Court of Appeals and not admitted pro hac vice may do nothing more than attempt to secure a continuance. It did not present an affirmative defense to the complaint. However, in this motion, and each of the previous motions requesting a continuance, it stated that its "initial defense strategy is to object" that the Superior Court did not have personal jurisdiction over Digital Broadcast because it is a Delaware corporation with its home office in New York, and "conduct[s] business in several states - inclusive of Nebraska" but not in the District of Columbia. It also argued that the District of Columbia is an inconvenient forum because the law firm also is based in New York.

The trial court denied the motion to set aside the default on December 17, explaining that the defendant "had ample time to secure counsel in time to respond to the complaint and appear at [the] scheduled hearing" and had "fail[ed] to comply with the applicable rules of this court governing a motion to vacate a default []." On December 21, Digital Broadcast filed a motion to reconsider denial of its motion to set aside the default, which the trial court denied on January 11, 2000 "for the failure of the movant to comply with Rule 55 (c)." After an ex parte hearing on damages on March 23, 2000, the court entered a default judgment in favor of the law firm for the full amount alleged in the complaint plus costs. *fn4

On February 9, 2000, Digital Broadcast appealed the default entered on October 29, 1999, which this court dismissed as an unappealable interlocutory order. It then filed this timely appeal of the default judgment. *fn5

II. Analysis

The parties differ on the test this court should apply to determine whether the entry of default was an abuse of discretion. Digital Broadcast asserts that the standard disfavoring dismissals and defaults under Superior Court Civil Rule 16-II, established in Durham v. District of Columbia, 494 A.2d 1346, 1350 (D.C. 1985), is appropriate. Rosenman & Colin urges the more deferential standard for default judgments articulated in Miranda under Superior Court Civil Rule 60 (b). See 754 A.2d at 279. We disagree with both; the correct standard to be applied in this case is the one set out in Superior Court Civil Rule 55 (c).

Rule 16-II authorizes the trial court to impose a range of sanctions for failure to appear at a pretrial conference, including entry of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.