MBE Capital Partners LLC v. AVPOL International LLC
- Paul Gardephe
- 1:17-cv-05992
- U.S. District Court · Southern District of New York
- 3
In MBE Capital Partners v. AVPOL International, Judge Gardephe dismissed claims against AVPOL and Walls and their counterclaim, while setting deadlines for Emerald and Kiewit.
MBE Capital’s claims against AVPOL International LLC and Sandra K. Walls were dismissed, and AVPOL and Walls’ accounting counterclaim was dismissed for failure to prosecute. Emerald Transformer faced a possible future dismissal absent a default-judgment application, while MBE Capital and Kiewit were directed to pursue settlement.
What happened
In MBE Capital Partners LLC v. AVPOL International LLC, MBE Capital Partners sued AVPOL, Sandra K. Walls, and several customers over a contract, alleging breach of contract, fraud, negligence, conversion, and interference with contractual relations. The court had previously dismissed claims against two federal agencies, and MBE Capital later settled its claims against Bodine Aluminum.
The court dismissed MBE Capital’s claims against AVPOL and Walls after MBE Capital consented to that dismissal. It also dismissed AVPOL and Walls’ counterclaim for an accounting because they did not pursue it or comply with a court order. Emerald Transformer had not responded, so MBE Capital was given until December 10, 2020, to seek a default judgment; otherwise, its claim against Emerald Transformer would be dismissed for failure to prosecute. MBE Capital and Kiewit were directed to pursue settlement and submit a joint letter by January 7, 2021.
In MBE Capital Partners LLC v. AVPOL International LLC, Judge Paul G. Gardephe issued these dismissals and case-management deadlines on December 4, 2020. The order did not decide the underlying contract, fraud, negligence, conversion, or interference claims on their merits.
The detailed version
- MBE Capital Partners LLC v. AVPOL International LLC · No. 1:17-cv-05992
- Paul Gardephe
- Dec. 4, 2020
Background
MBE Capital Partners, LLC brought the action on August 9, 2017, against AVPOL International LLC, doing business as AIL Logistics Solutions; Sandra K. Walls; and several of AVPOL’s customers. MBE Capital asserted claims for breach of contract, fraud, negligence, conversion, and interference with contractual relations based on a contract between MBE Capital and AVPOL.
The court had previously dismissed MBE Capital’s claims against the General Services Administration and the United States Army Corps of Engineers. MBE Capital later settled its claims against Bodine Aluminum, Inc. The opinion states that there had been no docket activity since that settlement.
Rulings
At a December 3, 2020 conference, MBE Capital stated that it consented to dismissal of its claims against AVPOL and Walls. The court stated that both defendants had filed bankruptcy petitions and that their bankruptcy proceedings had concluded. The court therefore dismissed MBE Capital’s claims against AVPOL and Walls.
AVPOL and Walls had asserted a counterclaim seeking an accounting. The court found that they had not pursued that counterclaim after seeking bankruptcy protection and had not complied with an October 20, 2020 order requiring a status letter and attendance at the conference. Relying on Federal Rule of Civil Procedure 41(b), which permits dismissal when a party fails to prosecute a case or comply with the rules or a court order, the court dismissed their counterclaim for failure to prosecute.
Emerald Transformer Corporation had not responded to the complaint or otherwise appeared. The court directed MBE Capital to file any request for a default judgment against Emerald Transformer by December 10, 2020. The court stated that, absent such an application, MBE Capital’s claim against Emerald Transformer would be dismissed for failure to prosecute. The order did not yet state that the claim had been dismissed.
As to Kiewit, identified in the body of the opinion as Kiewit Power Constructors Co., the court directed MBE Capital and Kiewit to pursue settlement for thirty days and submit a joint letter by January 7, 2021. If they had not settled, they were directed to submit a proposed case-management plan.
Effect of the Order
The order resolved MBE Capital’s claims against AVPOL and Walls and dismissed AVPOL and Walls’ accounting counterclaim for failure to prosecute. It set a deadline concerning a possible default judgment against Emerald Transformer and directed MBE Capital and Kiewit to pursue settlement. It did not decide the underlying claims on their merits.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.