Wachovia's counsel comes out swinging and gets downright Biblical:
Defendant stresses that it has given a true and legitimate explanation for the default. As set out in the Declaration of Carl S. Burkhalter (Exhibit B to the Motion), the February 17, 2011 deadline was not docketed due to the unique confluence of an associate's resignation and a computer problem.Exactly -- it was the Plaintiff's fault!
Plaintiff quibbles with this explanation, asserting that it does not explain the failure of two other attorneys to take action: Inge Selden (with Maynard, Cooper & Gale) and Jay Thornton (local counsel with Hunton & Williams). Regarding Mr. Selden, Plaintiff misses the point: Ms. Escalona and Ms. Juarez were responsible for sending a notification of the February 17th deadline (via Microsoft Outlook) to all the Maynard, Cooper & Gale attorneys on the file – that is, to both Mr. Burkhalter and Mr. Selden. In other words, Messrs. Burkhalter and Selden were in the same boat; the deadline was on neither attorney's calendar for precisely the same reason.
As for Mr. Thornton, he has submitted his own declaration (attached hereto as Exhibit A) explaining his actions. In it, he states (under penalty of perjury) that the deadline was marked as "completed" by his docketing department. He also notes that, to avoid duplication of effort, his firm has not been involved in many aspects of this case. He adds that Plaintiff's counsel never once mentioned the failure to file an answer to the amended complaint.
I don't know, this is a mighty aggressive way of asking the Court to undo something that it acted on sua sponte when you already accepted responsibility for the problem in the first place.
What happened to old-fashioned groveling?
That said, I don't see how this motion is not granted (which is perhaps why the defendant could have dialed it down a notch).