DAVIS v. CENTER OF EARS, NOSE, THROAT & ALLERGY P.C.RESPONSE , re EntryS.D. Ind.February 4, 2019 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION LATISHA DAVIS, Plaintiff and Counter- Defendant, v. CENTER FOR EAR, NOSE, THROAT AND ALLERGY, P.C., Defendant and Counterclaimant. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:16-cv-2368-RLY-MPB DEFENDANT’S RESPONSE TO ENTRY DIRECTING FURTHER PROCEEDINGS Defendant and Counterclaimant, Center for Ear, Nose, Throat and Allergy, P.C. (“CENTA” or “Defendant”), hereby responds to the Court’s Entry Directing Further Proceedings. (Doc. 54) CENTA opposes the dismissal of its counterclaim unless Latisha Davis’ case against CENTA also is dismissed with prejudice. In support of its response, CENTA states: 1. On December 19, 2017, CENTA obtained an entry of default against Latisha Davis (“Davis” or “Plaintiff”) for its counterclaim against her. (Doc. 51) 2. Davis has not taken any action to prosecute her case against CENTA since before the entry of default. 3. Since obtaining the entry of default, CENTA has not moved for a default judgment. CENTA is willing to put this matter behind it, and it does not intend to seek a default judgment if Davis’ case is dismissed with prejudice for failure to prosecute. 4. CENTA and Davis have been ordered to respond to the Court’s Entry Directing Further Proceedings on the same date. As such, CENTA is unable to determine, before its response is due, whether Davis’ case will remain active. If Davis does not respond to the Court’s Entry Case 1:16-cv-02368-RLY-MPB Document 55 Filed 02/04/19 Page 1 of 3 PageID #: 123 2 Directing Further Proceedings, CENTA agrees to the dismissal with prejudice of its counterclaim simultaneously with the dismissal with prejudice of Davis’ case. 5. Dismissal with prejudice of Davis’ case and CENTA’s counterclaims is appropriate under Fed. R. Civ. Pro. 41(a)(1)(B), 41(b), and 41(c)(2). 6. However, if Davis does respond to the Court’s Entry Directing Further Proceedings and/or takes action to prosecute the case before it is dismissed, CENTA asks that the entry of default be preserved so that it can seek default judgment. WHEREFORE, CENTA requests that the Court not dismiss its counterclaim against Davis unless and until it simultaneously dismisses, with prejudice, both Davis’ case against CENTA and CENTA’s counterclaims against Davis. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: s/ Amanda Couture Steven F. Pockrass, Attorney No. 18836-49 Amanda C. Couture, Attorney No. 24838-53 111 Monument Circle, Suite 4600 Indianapolis, Indiana 46204 Telephone: (317) 916-1300 Facsimile: (317) 916-9076 steven.pockrass@ogletreedeakins.com amanda.couture@ogletreedeakins.com Attorneys for Defendant Case 1:16-cv-02368-RLY-MPB Document 55 Filed 02/04/19 Page 2 of 3 PageID #: 124 3 CERTIFICATE OF SERVICE I hereby certify that on the 4th day of February 2019, a copy of the foregoing was filed electronically. I also certify that I served a copy of this filing via U.S. First-Class Mail addressed to: LATISHA DAVIS 6007 W. Lake South Drive Apartment A Indianapolis, IN 46224 s/ Amanda Couture 37264442.1 Case 1:16-cv-02368-RLY-MPB Document 55 Filed 02/04/19 Page 3 of 3 PageID #: 125