CONSERVATION STATION, INC. v. BOLESKY, 2023 NCBC 14

STATE OF NORTH CAROLINA
WAKE COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
21 CVS 17162
CONSERVATION STATION, INC.,
Plaintiff,
v.
MATTHEW BOLESKY and
CONSERVATION TECHNOLOGY &
SOLUTIONS, LLC,
Defendants.
ORDER AND OPINION ON
DEFENDANT’S MOTION TO SET
ASIDE DEFAULT JUDGMENT AND
MOTION TO DISMISS
1. 	THIS MATTER is before the Court following the filing on 12 January 2023
by Defendant Matthew Bolesky pro se (“Bolesky”) of: (a) Defendants’ (sic) Matthew
Bolesky Motion to Set Aside Void or Nulify (sic) Default Judgment (the “Motion to
Set Aside”) (ECF No. 80 [“Mot. Set Aside”]); and (b) Defendants’ (sic) Matthew
Bolesky Motion to Dismiss (the “Motion to Dismiss”) (ECF No. 81). With the motions
filed on 12 January 2023, Bolesky filed two identical copies of Defendants’ (sic)
Matthew Bolesky Memorandum in Support of Their (sic) Motion to Dismiss.1
2. 	Plaintiff timely responded to both the Motion to Set Aside and the Motion
to Dismiss with one brief. (ECF No. 84.) Bolesky failed to timely file a reply brief.
1 (See Defendants’ (sic) Matthew Bolesky Memorandum in Support of Their (sic) Motion to
Dismiss (ECF Nos. 80.2, 81.1) and Defendants’ (sic) Matthew Bolesky Amended and
Supplimental (sic) to Support Defendant’s Motion to Void Judgment and Motion to Dismiss
(ECF No. 82).)
Conservation Station, Inc. v. Bolesky, 2023 NCBC 14.

3. 	As a result, the motions have been fully briefed and the Court in its
discretion decides the motions without a hearing as permitted by North Carolina
Business Court Rule 7.4.2
4. 	For the reasons set forth herein, the Court DENIES the Motion to Set Aside
and DENIES as moot the Motion to Dismiss.
Revolution 	Law 	Group, 	by 	C. 	Scott 	Meyers, 	Esq. 	for 	Plaintiff
Conservation Station, Inc.
Matthew Bolesky, pro se, for Defendant Matthew Bolesky.
Robinson, Judge.
5. 	Plaintiff initiated this action on 30 December 2021 with the filing of
Plaintiff’s Complaint. 	(ECF No. 3.) 	Bolesky was served with the summons and
complaint on 6 January 2022. 	(See Mot. Entry Default ¶ 2, ECF No. 23.) 	On 18
January 2022, Bolesky, acting pro se on behalf of himself and purporting to act on
behalf of Conservation Technology & Solutions, LLC, filed Defendants’ Motion to
Dismiss Plaintiff’s Complaint pursuant to Rules 12(b)(1), (b)(2), (b)(4), (b)(6), and
(b)(7) of the North Carolina Rules of Civil Procedure (“Rule(s)”). (ECF No. 34.)
6. 	Bolesky’s 18 January 2022 motion to dismiss came on for hearing on 25
April 2022 in Wake County Superior Court, the Honorable William Pittman, Superior
Court Judge presiding. Following a hearing on the motion to dismiss, Judge Pittman
2 Neither party requested a hearing. See BCR 7.4 (“Special considerations thought by counsel
sufficient to warrant a hearing or oral argument may be brought to the Court’s attention in
the motion or response.”).

denied the motion by written order dated 25 April 2022 and filed on 28 April 2022.
(ECF No. 48; see also ECF No. 23, ¶ 5.)3
7. 	By operation of Rule 12(a)(1)(a), upon entry of Judge Pittman’s order of 25
April 2022, Bolesky had 20 days (until 18 May 2022) to file an Answer to the
Complaint. Bolesky failed to timely file a response.
8. 	On 6 May 2022, Defendant Current Lighting Solutions, LLC filed its Notice
of Designation of this action to the North Carolina Business Court. (ECF No. 4.) As
a result, on 9 May 2022, this matter was designated to the Business Court by the
Chief Justice of the North Carolina Supreme Court, (ECF No. 1), and assigned to the
undersigned by order of the Chief Judge of the Business Court. 	(Assignment Or.,
ECF No. 2.)
9. 	Approximately two months later, on 1 July 2022, Plaintiff filed its Motion
for Entry of Default, (ECF No. 23), seeking entry of default against Bolesky. A copy
of the Motion for Entry of Default was served on Bolesky by U.S. Mail. (Mot. Entry
Default 3.)
10. 	On 21 July 2022, the deadline for Bolesky to respond to the Motion for Entry
of Default, the Court entered an order directing Plaintiff to provide the Court with
information regarding Bolesky’s involvement in this action. 	(Or. Pl.’s Mot. Entry
Default Against Def., ECF No. 32.) 	In response to the Court’s 21 July 2022 order,
Plaintiff that same day filed Plaintiff’s Statement Regarding Defendant Matthew
3 On the same date, Judge Pittman granted Plaintiff’s separately filed Motion to Strike,
finding that Bolesky, a non-lawyer, could not represent Defendant Conservation Technology
& Solutions, LLC. (See Order of (sic) Granting Plaintiff’s Motion to Strike, ECF No. 49.)

Bolesky’s Involvement, (ECF No. 51), which provided detailed information about the
procedural history of this case as it relates to Bolesky and his involvement before and
after Judge Pittman entered the order denying Bolesky’s motion to dismiss.
11. 	Based on the materials of record, including Plaintiff’s 21 July 2022 filing,
the Court determined that the record provided undisputed evidence that, at least as
of 1 July 2022, Bolesky was put on notice that his motion to dismiss was denied, and
on 5 July 2022 Bolesky was orally advised of the same during a telephonic case
management conference. 	Bolesky was further advised that Plaintiff had filed its
Motion for Entry of Default. 	(Or. Pl.’s Mot. Entry Default ¶ 8, ECF No. 53 [“Or.
Entering Default”].) Additionally, on 5 July 2022, Plaintiff’s counsel both mailed and
emailed to Bolesky copies of pertinent court filings including the Motion for Entry of
Default seeking entry of default against Bolesky.
12. 	Notwithstanding being provided by Plaintiff’s counsel with information
regarding the date of entry by Judge Pittman of the order denying Bolesky’s motion
to dismiss, which triggered Bolesky’s obligation to timely respond to Plaintiff’s
Complaint, Bolesky took no action. As a result, on 26 July 2022, more than 20 days
after Bolesky was advised of Plaintiff’s motion for entry of default, which indisputably
put Bolesky on notice of the consequences of his failure to timely respond, the Court
entered default against Bolesky as to the Complaint. (Or. Entering Default ¶ 9.)
13. 	Bolesky seeks by the motions presently before the Court to obtain an order
setting aside the default entered by the Court against him on 26 July 20224 and an
4 The language used by Bolesky in the Motion to Set Aside is confusing in that it uses in the
title to the motion the term “default judgment.” As Plaintiff points out in its response brief,

order dismissing the Complaint pursuant to Rule 12(b)(6). Bolesky contends that his
failure to timely and properly respond to Plaintiff’s Complaint was a result of
excusable neglect.
14. 	With respect to Bolesky’s contention that he should be relieved of the
consequences of his failure to timely respond to the Complaint, he provides only the
following explanation:
I would assert that my excusable neglect is a result of my excusable
ignorance of the law and deadlines for filings as a Pro Se litigant. This
is absolutely attributable to my inability to afford legal representation
in this on-going litigation with Michaud [his former spouse] and now
with Conservation Station Inc. which is a proxy or extension of Michaud.
Litigation has been on-going for nearly 7 years and has put me on the
verge of bankruptcy. What I am asking is this Court to consider setting
aside the default judgment and the actual merits of the Original Claim
and consider the facts in my supplemental filing Motion to Dismiss the
original claim, which has been done with all other Defendants with the
exception of Bolesky and CTS, the only two unrepresented parties in this
litigation.
(Mot. Set Aside 1–2.)
15. 	Under settled North Carolina law, a defendant seeking to set aside an entry
of default is required to show good cause. Luke v. Omega Consulting Group, LC, 194
N.C. App. 745, 748 (2009). 	The determination of good cause rests in the sound
discretion of the trial court. Id.
16. 	Bolesky has failed to demonstrate good cause. 	As noted by Plaintiff in its
response to the Motion to Set Aside, while the good cause standard is less stringent
than the excusable neglect standard applicable to setting aside a default judgment,
the Court has not entered a default judgment against Bolesky. 	Therefore, the Court
interprets the Motion to Set Aside to seek an order setting aside the entry of default ordered
by the Court on 26 July 2022.

the Court should focus on “[t]he degree of attention or inattention shown by the
defendant” because it is a “compelling factor[.]”5 Id. at 749.
17. 	The record before the Court demonstrates no good reason for Bolesky’s
failure to timely respond to the Complaint following Judge Pittman’s order filed 28
April 2022. Even though this Court diligently attempted to satisfy itself that Bolesky
had been kept abreast of the litigation, and even though Bolesky apparently was
involved in several aspects of this case (including specifically being advised on 5 July
2022 that a motion for entry of default had been filed against him), Bolesky took no
action in response to the motion. The Court finds unconvincing Bolesky’s explanation
that he did not attend to his obligations as a pro se party because he was on the verge
of bankruptcy—such a condition is not an excuse for failure to comply with governing
rules. Simply put, Bolesky was bound, as a pro se litigant, to be aware of and abide
by the Rules of Civil Procedure and to comply with filing deadlines. Bolesky failed to
do so.
18. 	Because the Court has determined in its discretion that Bolesky has failed
to demonstrate good cause, the Motion to Set Aside must be, and is, DENIED.
19. 	With respect to the separately filed Motion to Dismiss pursuant to Rule
12(b)(6), Bolesky’s filing is procedurally improper. Bolesky has already filed a motion
to dismiss pursuant to Rule 12(b)(6) and the Court has already denied that motion.
20. 	Specifically, in the Court’s order filed 28 April 2022, Judge Pittman denied
Bolesky’s motion to dismiss brought forward by Bolesky on 25 April 2022 pursuant
5 The Court notes that Bolesky argues he has satisfied the excusable neglect standard—a
higher standard than required under controlling law. Simply put, he has not.

to numerous provisions of Rule 12(b), including (b)(6). 	Because another Superior
Court 	Judge 	has 	previously 	considered 	and 	determined 	Bolesky’s 	request 	for
dismissal for the claimed failure of Plaintiff to state valid claims, this Court may not
revisit or second guess that ruling. 	State v. Woolridge, 357 N.C. 544, 549 (2003)
(“Ordinarily one judge may not modify, overrule, or change the judgment of another
Superior Court judge previously made in the same action.” (citation omitted)).
21. 	Additionally, because the Court has denied Bolesky’s Motion to Set Aside,
the Court lacks authority to consider the relief sought by Bolesky in his dismissal
motion. As a result, the Court DENIES the Motion to Dismiss as moot.6
22. 	THEREFORE, for the reasons set forth herein, the Court rules as follows:
a. 	Bolesky’s Motion to Set Aside is DENIED; and
b. 	Bolesky’s Motion to Dismiss is DENIED as moot.
SO ORDERED, this the 17th day of February, 2023.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases
6 The Court notes, however, that it will be required to determine the legal sufficiency and
validity of Plaintiff’s causes of action contained in the Complaint if Plaintiff later seeks a
default judgment against Bolesky, something Plaintiff has not yet pursued. See Pee Dee Elec.
Mbrship. Corp v. King, 2018 NCBC LEXIS 22, at *11–12 (N.C. Super. Ct. Mar. 15, 2018)
(citing Brown v. Cavit Scis., Inc., 230 N.C. App. 460, 467 (2013)).