Replies to post #359 on Modern Energy Corp (fka MDRG)

[Southern Gal]

5080656.4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
Scottrade, Inc., )
)
Plaintiff, )
)
y. ) Case No. 4:07-cv-01982 HEA
)
Modem Energy Corporation; )
First Public Securities Transfer )
Corporation; )
)
Defendants; )
)
Merrill Lynch, Pierce Fenner & )
Smith, Inc.; Ridge Clearing & Outsourcing )
Solutions, Inc.; Penson Financial Services, Inc., )
E*Trade Financial Corporation; TD Ameritrade,)
Clearing Services, Inc.; )
)
Relief Defendants. )
PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT AGAINST DEFENDANTS
MODERN ENERGY CORPORATION AND FIRST PUBLIC SECURITIES TRANSFER
CORPORATION AND APPLICATION FOR ENTRY OF DEFAULT JUDGMENT
AGAINST SAID DEFENDANTS
Pursuant to Rule 55(a), Fed. R. Civ. P., Plaintiff Scottrade, Inc. ("Scottrade") moves for
entry of default against Defendants Modem Energy Corporation ("Modem Energy") and First
Public Securities Transfer Corporation ("First Public").
Pursuant to Rule 55(b), Fed R. Civ. P., Scottrade applies for entry ofdefault judgments in
the form of the proposed default judgment, including permanent injunctive relief, annexed hereto
as Exhibit 1, and requests that this matter be set for hearing as soon thereafter as counsel may be
heard, and in any event on or before February 17, 2010.
As grounds for this Motion, and in support thereof, Scottrade states:
Modem Energy entered its appearance through counsel in this matter on December 7,
2007 (Docket Entry # 15). Subsequently, on August 4, 2009, the Court granted Modern
Energy's counsels' motions for leave to withdraw as Modem Energy's attomeys. No substitute
counsel has entered an appearance on behalf of Modem Energy, and no notice has been given by
Modem Energy of a new address where Modem Energy may be served.
First Public was served with process in this matter on January 17, 2007, as attested by
the return of service showing that the summons and complaint were delivered to First Public' s
registered agent, filed with this Court on January 24, 2008 (Docket Entry #53). No entry of
appearance has ever been filed in this action by any counsel representing First Public.
Neither Modern Energy nor First Public answered the Complaint.
On January 25, 2010, Scottrade filed its First Amended Complaint in this action.
Docket Entry # 63.
As shown on the Certificate of Service filed with the First Amended Complaint,
Scottrade served the registered agents of both Modern Energy and First Public with copies of the
First Amended Complaint on January 25, 2010.
Rule 15(a)(3) requires parties to respond to amended pleadings 14 days of service of
the First Amended Complaint.
Fourteen days have passed since Modern Energy and First Public were served with the
First Amended Complaint.
No appearance has been entered on behalf of either Modem Energy or First Public,
no response to the First Amended Complaint has been made by either Modem Energy or First
Public, and neither Modern Energy nor First Public have otherwise disputed the allegations of
5080656.4 2
the First Amended Complaint or attempted to defend the claims asserted against them in the First
Amended Complaint.
Each of Modem Energy and First Public are in Default.
The First Amended Complaint requests declaratory and injunctive relief against
Modem Energy and First Public.
By service of this Motion, Scottrade is providing Modem Energy and First Public
with notice of its application for entry of default judgments against each of them.
WHEREFORE, Scottrade, Inc. requests:
That the Clerk enter a Default against each of Defendants Modem Energy
Corporation and First Public Securities Transfer Corporation; and
That the Court schedule a hearing of this matter as soon as Counsel may be heard, and
in all events not later than February 17, 2010, and thereupon enter Judgment by Default against
Defendants Modem Energy Corporation and First Public Securities Transfer Corporation in
substantially the form of the proposed Judgment annexed hereto as Exhibit 1.
Respectfully submitted,
THOMPSON COBURN LLP
By: ¡si Kenton E. Knickmeyer
Thomas E. Douglass, #3 008
Kenton E. Knickmeyer, #3 577
One US Bank Plaza
St. Louis, Missouri 63101
314-552-6000
FAX [phone]
Attorneys for Plaintiff Scottrade, Inc.
5080656.5 3
CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been filed with the court via electronic court filing
and served on the parties who have appeared in this matter accordingly. Service via first class
mail postage prepaid, has been made on February 8, 2010, to Modem Energy and First Public
Securities by transmitting the same to their respective registered agents.
Joseph F. Devereux, Jr.
Vicki Little
Devereux and Murphy
190 Carondelet Plaza, 11th Floor
St. Louis, MO 63105
[phone]
[phone] (fax)
jfdevereuxjr)devercuxmurphy.com
Attorneys for E*Trade Financial Corporation
Adam Behar
Mark Digidio
[phone]
[phone]
adarn.beharridgeclearing.corn
mark. digidioridgeclearing.com
Attorneys for Defendant Ridge Clearing
Tim Davis
Penson Financial Services, Inc
1700 Pacific Avenue, Suite 1400
Dallas, TX 75201
[phone]
[phone] (fax)
tidavispenson.com
Attorneys for Defrndant Penson
Edwin L. Noel
F. Scott Galt
Armstrong Teasdale LLP
One Metropolitan Square, Suite 2600
St. Louis, MO 63102-2740
[phone]
[phone] (fax)
enoeIarmstrongteasda1e.corn
sgait(&),armstrongteasdale.com
Attorneys for Merrill Lynch, Pierce Fenner & Smith, Inc.
5080656.4 4
Modem Energy Corporation
Registered Agent
Corporation Service Company
1821 Logan Avenue
Cheyenne, WY 82001
R. Bums, Registered Agent
First Public Securities Transfer Corporation
6 Coronado Shores
Lincoln City, OR 97367
5080656.5 5
Is/Kenton E. Knickmeyer