American Airlines, Inc. v. In Charge Marketing, Inc. et al
Filing
32
OPINION AND ORDER granting 29 Motion for order to show cause to the extent that the 9 Answer is stricken and the Clerk shall enter a default against Peter Nagy, Jr. for failure to participate in case management or otherwise appear and defend; ado pting as modified 30 Report and Recommendations; granting 27 Motion for Default Judgment to the extent that the Clerk shall enter a default against In Charge Marketing, Inc. for failure to appear through counsel. The Clerk shall serve this Opinion and Order on both remaining defendants. Plaintiff may file its request for default judgments after the entry of the Clerk's defaults. Signed by Judge John E. Steele on 6/15/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMERICAN
AIRLINES,
corporation,
INC.,
a
Plaintiff,
vs.
Case No.
2:10-cv-467-FtM-29SPC
IN CHARGE MARKETING, INC., a Florida
Corporation, PETER SOTOLONGO, also
known as PEDRO SOTOLONGO, RIGOBERTO
SOTOLONGO, PETER NAGY, JR., DANIEL
MARSHALL,
Defendants.
___________________________________
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #30), filed May
20, 2011, recommending that plaintiff’s Motion for Default Judgment
as to Liability Only Against In Charge Marketing, Inc. (Doc. #27)
be granted.
No objections have been filed and the time to do so
has expired. Also before the Court is plaintiff’s Motion for Order
to Show Cause Why Sanctions Should Not Be Imposed Against Defendant
Peter Nagy Jr. for Failure to Comply With Court Order (Doc. #29).
No response has been filed and the time to respond has expired.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
636(b)(1);
28 U.S.C. §
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982),
cert. denied, 459 U.S. 1112 (1983).
In the absence of specific
objections, there is no requirement that a district judge review
factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9
(11th Cir. 1993), and the court may accept, reject or modify, in
whole or in part, the findings and recommendations.
636(b)(1)(C).
28 U.S.C. §
The district judge reviews legal conclusions de
novo, even in the absence of an objection.
See Cooper-Houston v.
Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro
Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993),
aff’d, 28 F.3d 116 (11th Cir. 1994) (Table).
On April 14, 2011, the Magistrate Judge entered an Order (Doc.
#24) granting plaintiff relief to the extent that defendant In
Charge Marketing, Inc. was directed to retain counsel or risk
sanctions for failure to appear and the request to compel defendant
Peter Nagy, Jr. to meet and confer for the filing of a case
management report was filed.
Plaintiff filed a unilateral Case
Management Report and neither defendant In Charge Marketing, Inc.
nor Peter Nagy, Jr. participated and complied with the direction of
the Magistrate Judge.
Therefore, plaintiff seeks the entry of a
default judgment as to liability against In Charge Marketing, Inc.
based on the failure to obtain counsel.
(Doc. #27.)
After conducting an independent examination of the file and
upon due consideration of the Report and Recommendation, the Court
accepts the findings in the Report and Recommendation that In
Charge Marketing failed to comply with the Court’s Order. However,
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the Court finds that a default is a prerequisite to the entry of a
default judgment under Federal Rule of Civil Procedure 55(a)1, and
therefore the Report and Recommendation will be adopted with the
modification that the motion is deemed a request for the entry of
a default.
Plaintiff also seeks sanctions, including a default judgment,
against Peter Nagy, Jr. for his failure to meet and confer for the
filing of a case management report.
Plaintiff indicates that
defendant has terminated all communication lines and sanctions
should be imposed.
The Court agrees.
The Answer (Doc. #9) will be
stricken and the Clerk will be directed to enter a default against
Peter Nagy, Jr. for his failure to respond and participate in the
case.
Accordingly, it is now
ORDERED:
1. The Report and Recommendation (Doc. #30) is hereby adopted
as modified.
2.
Plaintiff’s Motion for Default Judgment as to Liability
Only Against In Charge Marketing, Inc. (Doc. #27) is GRANTED to the
1
“When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the
party's default.” Fed. R. Civ. P. 55(a).
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extent that the Clerk shall enter a default against In Charge
Marketing, Inc. for failure to appear through counsel.
3.
Plaintiff’s Motion for Order to Show Cause Why Sanctions
Should Not Be Imposed Against Defendant Peter Nagy Jr. for Failure
to Comply With Court Order (Doc. #29) is GRANTED to the extent that
the Answer (Doc. #9) is stricken and the Clerk shall further enter
a default against Peter Nagy, Jr. for failure to participate in
case management or otherwise appear and defend.
4.
The Clerk shall serve this Opinion and Order on both
remaining defendants.
Plaintiff may file its request for default
judgments after the entry of the Clerk’s Defaults.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2011.
Copies:
Hon. Sheri Polster Chappell
United States Magistrate Judge
Counsel of Record
Unrepresented parties
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15th
day of
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