Steginsky v. Xcelera Inc. et alMOTION to Set Aside Default and Stipulation and Proposed OrderD. Conn.May 4, 2012UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT GLORIA STEGINSKY, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. XCELERA INC., OFC LTD., VBI COPRORATION, ALEXANDER M. VIK, GUSTAV M. VIK, and HANS EIRIK OLAV, Defendants. : : : : : : : : : : : : Civil Action No. 3:12-cv-00188- SRU DATED: May 4, 2012 JOINT MOTION, STIPULATION AND [PROPOSED] ORDER TO SET ASIDE DEFAULT ENTERED AGAINST ALEXANDER M. VIK Plaintiff Gloria Steginsky (“Plaintiff”) and Defendants Alexander M. Vik (“Vik”), Gustav Vik and Xcelera, Inc. (“Defendants”) move pursuant to Federal Rule of Civil Procedure 55(c) to set aside the default entered by this Court on April 5, 2012. ECF No. 15. In support of this motion, the parties contend there is good cause for the Court to set aside its entry of default in light of the facts set forth in the following stipulation. WHEREAS Plaintiff believes that she properly caused Vik to be served in accordance with the requirements of Fed. R. Civ. P. 4(e)(1) on February 10, 2012; WHEREAS Vik disputes the propriety of service, but acknowledges having known about the pendency of this action; WHEREAS Plaintiff filed a proof of service with the Court on February 29, 2012 with respect to service having been made on Vik (ECF No. 8); WHEREAS Plaintiff filed a Notice of Default on April 3, 2012 (ECF No. 14) and the Court has set May 5, 2012 as the deadline for Plaintiff to file a motion in support of the default entered (ECF No. 15); Case 3:12-cv-00188-SRU Document 30 Filed 05/04/12 Page 1 of 4 2 WHEREAS Vik is providing Plaintiff with an affidavit or affirmation stating that he did not destroy, or cause anyone else to destroy, any documents in his possession, custody, or control relevant to this action after February 10, 2012; WHEREAS Vik contends that he has a meritorious defense to the claims being asserted against him in this action; WHEREAS this case is in the early stages of proceedings and no discovery has yet taken place; and WHEREAS the parties, through their counsel, have engaged in extensive arms’-length discussions concerning removing the Notice of Default; NOW THEREFORE, Plaintiff and Defendants Vik, Gustav Vik and Xcelera, Inc. hereby stipulate and agree as follows: 1. The parties consent that the order of default docketed on April 5, 2012 (ECF No. 15) be set aside and that it shall have no force or effect subject to the terms stated herein. 2. Defendants Alexander M. Vik, Gustav Vik, and Xcelera, Inc. stipulate that service is effective and they shall have until June 6, 2012 to answer, respond, or otherwise plead with respect to the complaint in this matter. In the event they move for dismissal, they will consult with Plaintiff and agree to a reasonable briefing schedule which shall allow Plaintiff at least 30 days within which to respond to any such motion. 3. Plaintiff is relieved from the obligation to conduct a discovery conference, pursuant to Fed. R. Civ. P. 26(f), prior to serving discovery requests directed at preserving relevant documents in the possession of any third parties. In addition, Defendants will not claim that the automatic stay of discovery imposed by Section 21(D)(b)(3)(B) of the Securities Exchange Act of 1934, as amended, 15 U.S.C. §78u-4(b)(3)(B), prohibits or prevents such Case 3:12-cv-00188-SRU Document 30 Filed 05/04/12 Page 2 of 4 3 document preservation discovery from taking place. However, nothing contained herein shall preclude Plaintiff from seeking (or Defendants from opposing) any further or different relief with respect to discovery in this matter. 4. The parties further stipulate that they shall not challenge venue in this action (and shall oppose any challenge to venue in this proceeding). Respectfully submitted, WHITMAN BREED ABBOTT & MORGAN LLC _/s/ Charles W. Pieterse_________________ Charles W. Pieterse, Esq., ct01577 500 West Putnam Ave. Greenwich, Connecticut 06830 Telephone: (203) 862-2332 Facsimile: (203) 869-1951 cpieterse@wbamct.com WILMER CUTLER PICKERING HALE AND DORR LLP Peter J. Macdonald 399 Park Avenue New York, NY 10022 Telephone: (212) 230-8800 Facsimile: (212) 230-8888 Attorneys for Defendant Alexander M. Vik Gustav Vik and Xcelera, Inc. SCOTT+SCOTT LLP __/s/ Erin Green Comite____________ Erin Green Comite (CT 24886) Joseph P. Guglielmo (CT 27481) 156 South Main Street P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 ecomite@scott-scott.com jguglielmo@scott-scott.com ABRAHAM, FRUCHTER & TWERSKY, LLP Jeffrey S. Abraham (pro hac vice) Philip T. Taylor (pro hac vice) One Penn Plaza, Suite 2805 New York, NY 10119 Telephone: (212) 279-5050 Facsimile: (212) 279-3655 jabraham@aftlaw.com ptaylor@aftlaw.com Attorneys for Plaintiff SO ORDERED: _____________________________U.S.D.J. DATED: ___________________________ Case 3:12-cv-00188-SRU Document 30 Filed 05/04/12 Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on May 4, 2012, I caused the foregoing to be electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the email addresses denoted on the Electronic Mail Notice List, and I hereby certify that I caused the foregoing document or paper to be mailed via the United States Postal Service to the non- CM/ECF participants indicated on the manual Notice List. I certify under the laws of the United States of America that the foregoing is true and correct. Executed on May 4, 2012. __/s/ Erin Green Comite____________ Erin Green Comite (CT 24886) 156 South Main Street P.O. Box 192 Colchester, CT 06415 Telephone: (860) 537-5537 Facsimile: (860) 537-4432 ecomite@scott-scott.com Case 3:12-cv-00188-SRU Document 30 Filed 05/04/12 Page 4 of 4
