United States of America v. Gumbaytay et al

Filing 97

MEMORANDUM OPINION AND ORDER that plaintiff's 75 MOTION for Entry of Default is DENIED; that Jamarlo Gumbaytay and Matthew Bahr file an answer to Plaintiff's Amended Complaint no later than October 19, 2009. Signed by Hon. Chief Judge Mark E. Fuller on 10/5/2009. (Attachments: # 1 Civil Appeals Checklist)(cc, ) Mailed to Matthew Bahr by both regular mail and CMRRR with copy of Amended Complaint and Motion for Entry of Default as directed.

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION U N IT E D STATES OF AMERICA, P L A IN T IF F , v. J A M A R L O K. GUMBAYTAY, et al., DEFEN DANTS. ) ) ) ) ) ) ) ) )

C A S E NO. 2:08cv-573-MEF

M E M O R A N D U M OPINION AND ORDER O n July 17, 2008, the United States of America ("Plaintiff") brought suit (Doc. #1) a g a in s t eleven defendants pursuant to Title VIII of the Civil Rights Act of 1968, as amended, 4 2 U.S.C. §§ 3601-3619 ("Fair Housing Act"). Plaintiff filed an Amended Complaint (Doc. # 4 5 ) on January 7, 2009, with additional claims pursuant to the Fair Housing Act against the te n remaining of the original defendants and three additional defendants. Plaintiff alleges th a t defendant Jamarlo Gumbaytay ("Gumbaytay") engaged in a pattern of unlawful d i sc r im in a t io n on the basis of sex in connection with the rental of the other defendants' p ro p e rties . This cause is before the Court on Plaintiff's Application for Entry of Default (D o c . #75), which the Court construes as a Motion for Entry of Default Judgment, filed on J u n e 26, 2009. I. PROCEDURAL HISTORY A . Original Complaint O n July 17, 2008, Plaintiff brought suit against eleven defendants pursuant to the Fair

H o u s in g Act.

The original eleven defendants include the Estate of Donna Greene

( " G re e n e " ), Lori Williams ("Williams"), Sean McDonough ("McDonough"), Woody D. F r a n k lin and Woody D. Franklin, Sr. (collectively "the Franklins"), James F. Clark and B a rb a ra Clark (collectively "the Clarks"), Gumbaytay, Matthew Bahr ("Bahr"), and Brett R o s e n b a u m ("Rosenbaum"). Gumbaytay, Bahr, the Franklins, the Clarks, and Williams filed a n s w e rs to Plaintiff's Original Complaint. See Docs. #6-7, 16, 19, 39. Bahr and Williams a re pro se litigants. B . Amended Complaint P la in tif f filed an Amended Complaint (Doc. #45) on January 7, 2009, with additional c la im s pursuant to the Fair Housing Act against the original defendants and three additional d ef en d an ts . The additional defendants include Millennia Properties, LLC ("Millennia"), A b rah am Campbell ("Campbell"), and Guest Property Sales, LLC ("Guest Property"). M ille n n ia and Campbell answered the Amended Complaint. See Docs. #51-52. Williams, th e Franklins, and the Clarks also filed answers to the Amended Complaint. See Docs. #808 1 , 94. On April 10, 2009, the Clerk of the Court filed an Entry of Default as to defendants M c D o n o u g h and Rosenbaum (Doc. #64). On June 26, 2009, the Clerk of the Court filed an E n try of Default as to defendant Guest Property (Doc. #74). C . Plaintiff's Motion For Entry of Default As To Seven Defendants O n June 26, 2009, Plaintiff filed a Motion for Entry of Default as to Seven Defendants (D o c. #75). In its motion, Plaintiff seeks default judgment against Gumbaytay, Bahr,

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W illia m s , the Franklins, and the Clarks. The Franklins, Clarks, and Gumbaytay filed R esp o n ses in Opposition to Plaintiff's Motion (Docs. # 78-79, 92). I I . DISCUSSION R u le 55(a) of the Federal Rules of Civil Procedure states that "[w]hen a party a g a i n s t whom a judgment for affirmative relief is sought has failed to plead or otherwise d e f en d as provided by these rules ... the clerk shall enter the party's default." Fed. R. Civ. P . 55(a). Once this has occurred, "the party entitled to a judgment by default shall apply to the court therefor." Fed. R. Civ. P. 55(b)(2). However, the law in this Circuit is clear th a t "there is a strong policy of determining cases on their merits and we therefore view d e f au lts with disfavor." In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2 0 0 3 ); Fla. Physician's Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993) (stating that "defaults are seen with disfavor because of the strong policy of determining cases on their m e rits " ). In addition, courts have generally required some notice to be given to a d e f e n d a n t between the time of service of process and entry of default judgment. See, e.g., A tl. Recording Corp. v. Carter, 508 F. Supp. 2d 1019, 1022 n. 1 (S.D. Ala. 2007) (c o llec tin g cases); F.T.C. v. 1263523 Ontario, Inc., 205 F. Supp. 2d 205, 208 (S.D.N.Y. 2 0 0 2 ) (entering default judgment where defendants had failed to respond in any way to su m m o n s, complaint and motion for default judgment). P lain tiff seeks entry of default judgment against seven of the named defendants in this c a se . However, all of these defendants have filed answers to the Amended Complaint except

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G u m b a yta y and pro se litigant Bahr. Because the defendants have filed an answer to either P lain tiff 's original complaint or amended complaint, Plaintiff's Motion for Entry of Default a s to Seven Defendants is due to be denied. I I I . CONCLUSION F o r the reasons set forth above, Plaintiff's Motion (Doc. #75) is DENIED. T o ensure that Bahr has proper notice of these proceedings, the Clerk of the Court is DIRECTED to mail a copy of this Order, Plaintiff's Amended Complaint (Doc. # 4 5 ), and Plaintiff's Motion for Entry of Default as to Seven Defendants (Doc. #75) to Matthew Bahr by both regular mail and by certified mail, return receipt requested. It is also ORDERED that Jamarlo Gumbaytay and Matthew Bahr file an answer to Plaintiff's Amended Complaint no later than October 19, 2009. Mr. Bahr is also hereby advised that failure to participate in proceedings may result in the imposition of sanctions. DONE this the 5th day of October, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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