AJS Weightloss, LLC v. Rosenthal et al

Filing 43

ORDER re 42 Response to order to show cause filed by Wagner, Johnston & Rosenthal, P.C., Michael S. Rosenthal. Due to Defendants and Third Party Plaintiffs' Response to the Court's Order to Show Cause, 42 , and pursuant to Federal Rule of Civil Procedure 55(b) no further action is needed at this time with regard to the Court's Order to Show Cause 41 . Signed by Judge Sheri Polster Chappell on 8/19/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AJS WEIGHTLOSS, LLC,
Plaintiff,
v.

Case No: 2:13-cv-711-FtM-38DNF

MICHAEL S. ROSENTHAL and
WAGNER, JOHNSTON &
ROSENTHAL, P.C.,
Defendants/Third
Party Plaintiffs
THIRD EYE MANAGEMENT AND
MARKETING, INC.,
Third Party Defendant.
_________________________________

/

ORDER1
This matter comes before the Court on Defendants and Third Party Plaintiffs'
Response to Order to Show Cause (Doc. 42) filed on August 14, 2014.
Plaintiff AJS Weightloss, LLC sued Defendants Rosenthal and Wagner, Johnston
& Rosenthal, P.C. (hereinafter “Rosenthal et al.”) for breach of contract and professional
negligence. (Doc. 14). Thereafter, Defendants and Third Party Plaintiffs Rosenthal et al.
sued Third Party Defendant Third Eye Management and Marketing, Inc. (hereinafter

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or Web sites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other Web sites, this court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they provide on their Web
sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court
accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink
ceases to work or directs the user to some other site does not affect the opinion of the court.

“Third Eye”) for indemnification of the two claims brought against them. (See Doc. 15, at
9). Third Eye did not timely appear in the case. Consequently, a Clerk’s Entry of Default
was entered against Third Eye. (Doc. 28). After the Clerk’s Entry of Default was entered,
at least 60 days passed in which Rosenthal et al. did not move for a final default judgment
against Third Eye pursuant to Federal Rule of Civil Procedure 55(b) and Local Rule
1.07(b). Therefore, the Court issued an Order to Show Cause as to why this case should
not be dismissed as to Third Eye for failure to prosecute by seeking a final default
judgment. (Doc. 41).
In response to the Order to Show Cause, Rosenthal et al. indicate they cannot
obtain a final default judgment against Third Eye because the damages cannot be
determined until the resolution of the primary action between AJS Weightloss, LLC and
Rosenthal et al. Upon consideration, the Court agrees. That is, the Court finds it is
appropriate to wait to enter a final default judgment against Third Eye until the primary
action between AJS Weightloss, LLC and Rosenthal et al. is resolved. See Vicenti v.
Bakers Specialties, LLC, No. 8:13-cv-2399-T-33EAJ, 2013 WL 6511648, at *1 (M.D. Fla.
Dec. 12, 2013) (explaining that “[t]he mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment.”) (citation omitted); North Pointe Ins.
Co. v. Global Roofing & Sheet Metal, Inc., No. 6:12-cv-476-Orl-31TBS, 2012 WL
5378826, at *4 (M.D. Fla. Sept. 4, 2012) (“Courts have interpreted [Rule 55(b)(2)] to mean
that ‘when a default is entered against one defendant in a multi-defendant case, the
preferred practice is for the court to withhold granting a default judgment until the trial of
the action on the merits against the remaining defendants.’”) (citations omitted). Here, the
indemnification claim against Third Eye is wholly dependent on the resolution of the

2

primary claim between AJS Weightloss, LLC and Rosenthal et al. Since the primary claim
has not been resolved, the damages issue is outstanding with regard to all parties. There
is a just reason to delay the entry of a final default judgment against Third Eye.
Accordingly, it is now
ORDERED:
Due to Defendants and Third Party Plaintiffs' Response to the Court’s Order to
Show Cause, (Doc. 42), and pursuant to Federal Rule of Civil Procedure 55(b) no further
action is needed at this time with regard to the Court’s Order to Show Cause (Doc. 41).
DONE and ORDERED in Fort Myers, Florida this 19th day of August, 2014.

Copies: All Parties of Record

3