West Coast Life Insurance Company v. Gorman et al
Filing
123
ORDER adopting 122 REPORT AND RECOMMENDATIONS re 1 Complaint filed by West Coast Life Insurance Company. The Clerk shall enter a CLERK'S DEFAULT against Thomas E. Murphy as personal representative of the Estate of James M. Murphy. The Court directs the Plaintiff, West Coast Life Insurance, to move for a default judgment on or before October 21, 2015. Signed by Judge Sheri Polster Chappell on 10/7/2015. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WEST COAST LIFE INSURANCE
COMPANY,
Plaintiff,
v.
Case No: 2:14-cv-175-FtM-38MRM
BOURKE J. GORMAN, EDWARD J.
GORMAN, III , PATRICK A.
GORMAN, THOMAS E. MURPHY
and HELEN GORMAN,
Defendants.
/
ORDER1
This matter comes before the Court on the Report and Recommendation of
Magistrate Judge Mac R. McCoy recommending that a default be entered against the
Defendant Thomas E. Murphy, as the Personal Representative of the Estate of James M.
Murphy (Doc. #122) filed on September 9, 2015. No response or objection has been filed
by Thomas E. Murphy as the representative of the Estate of James M. Murphy and the
time to do so has expired.
A district judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). If no specific
objections to findings of fact are filed, the district judge is not required to conduct a de
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novo review of those findings. Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir.1993).
However, the district judge must review legal conclusions de novo, even in the absence
of an objection. Cooper–Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.1994).
PROCEDURAL HISTORY
On July 22, 2015, Enita Kushi of the Kushi law firm was granted permission to
withdraw as counsel for Murphy as the personal representative of the estate of James M.
Murphy (personal representative). Judge McCoy directed Murphy to retain counsel within
fourteen (14) days of Atty. Kushi withdrawing as counsel. Judge McCoy explained that a
layman may represent himself in court but is not permitted to represent another party.
U.S. v. Blake Medical Center, 2003 WL 21004734, *1 (M.D. Fla. Feb. 13, 2003). After
fourteen days had passed, no notice of appearance had been filed by counsel and
Murphy did not respond to the Court’s Order.
On August 10, 2015, the Court issued an Order to Show Cause, directing Murphy
to show cause why he failed to obtain counsel. In that Order, the Court cautioned Murphy
that a default could be entered against him in his role as personal representative if he did
not obtain counsel within fourteen (14) days of the Order. Again, Murphy failed to respond
and no notice of appearance was filed by counsel. As a result of Murphy’s continued
disobedience to the Court’s Orders, Judge McCoy issued the instant Report and
Recommendation recommending that a default be entered against Murphy as personal
representative for failing to obtain counsel as required.
DISCUSSION
Rule 16(f), Federal Rules of Civil Procedure, provides that the Court may award
sanctions, including those authorized by Fed. R. Civ. P. 37(b)(2)(A) (ii-vii), if a party fails
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to obey a scheduling order or other pretrial order. Broadcast Music, Inc. v. MBratta
Enterprises, Inc., 2015 WL 3765200, *2 (M.D. Fla. June 16, 2015) (citing Fed. R. Civ. P.
16(f)). Those sanctions may include striking the pleadings or rendering a default judgment
against the disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(iii) and (vi).
It is a long held principal that artificial entities must be represented by counsel
because they can only act through agents. Broadcast Music, 2015 WL 3765200, at *2
(citing Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir.1985) (citing Commercial
and Railroad Bank of Vicksburg v. Slocomb, 39 U.S. 60, 14 Pet. 60, 10 L. Ed. 354 (1840);
U.S. v. Blake Medical Center, 2003 WL 21004734, *1 (M.D. Fla. Feb. 13, 2003) (holding
that a lay person is entitled to represent only himself, not any other person or entity).
Courts in this district have directed the clerk to enter a default against a[n] [artificial entity]
for failure to retain counsel. Id. (citing Varela v. Innovative Writing Solutions, LLC., 2008
WL 2700053 *1 (M.D.Fla.2008)).
In this case, the Court gave Murphy fourteen (14) days to obtain new counsel.
When he failed to comply with the Court’s Order, the Court issued another Order directing
him to obtain counsel to represent him as personal representative and warned of the
consequences if he failed to comply. Even after being warned that a default would be
entered against him as personal representative, Murphy still failed to respond or retain
counsel as directed. The Court provided Murphy with an explicit directive on two (2)
separate occasions and advised him of the consequences for failure to comply.
Therefore, after careful consideration of the Report and Recommendation and an
independent review of the file, the Court adopts, accepts, and approves the Report and
Recommendation.
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Accordingly, it is now
ORDERED:
The Report and Recommendation of Magistrate Judge Mac R. McCoy
recommending that a default be entered against the Defendant Thomas E. Murphy, as
the Personal Representative of the Estate of James M. Murphy (Doc. #122) is
ACCEPTED and ADOPTED.
1) The Clerk shall enter a CLERK’S DEFAULT against Thomas E. Murphy as
personal representative of the Estate of James M. Murphy.
2) The Court directs the Plaintiff, West Coast Life Insurance, to move for a default
judgment on or before October 21, 2015.
DONE and ORDERED in Fort Myers, Florida, this 7th day of October, 2015.
Copies: All Parties of Record
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