State Farm Mutual Automobile Insurance Company v. Epright et al

Filing 35

ORDER adopting 34 REPORT AND RECOMMENDATIONS re 1 Complaint filed by State Farm Mutual Automobile Insurance Company. The Report and Recommendation 34 is ACCEPTED and ADOPTED and incorporated into this Order. The Clerk of the Court i s directed to enter a DEFAULT JUDGMENT in favor of the Plaintiff, State Farm Mutual Automobile Insurance Company against the Defendants Evelyn Epright, Brinton Epright, and Chestelm Health Care, Inc. The Clerk is directed to CLOSE case. Signed by Judge Sheri Polster Chappell on 2/17/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Plaintiff,
v.

Case No: 2:15-cv-344-FtM-38MRM

EVELYN EPRIGHT, BRINTON
EPRIGHT and CHESTELM HEALTH
CARE, INC.,
Defendants.
/
ORDER1
This matter comes before the Court on the Report and Recommendation of
Magistrate Judge Mac R. McCoy (Doc. #34) issued on January 28, 2016, recommending
that a default be entered against the Defendants Evelyn and Brinton Epright, and
Chestelm Health Care, Inc. No objections or responses have been filed to the Report
and Recommendation and the time to do so has expired.

The Report and

Recommendation is now ripe for review.
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate judge’s
report and recommendation. 28 U.S.C. § 636(b)(1); United States v. Powell, 628 F.3d
1254, 1256 (11th Cir. 2010). A district judge “shall make a de novo determination of those

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portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United States v. Farias-Gonzalez,
556 F.3d 1181, 1184 n. 1 (11th Cir. 2009). The district judge reviews legal conclusions
de novo, even in the absence of an objection. Cooper-Houston v. S. Ry. Co., 37 F.3d
603, 604 (11th Cir. 1994). A district court may not reject the credibility determination of a
magistrate judge without personally rehearing disputed testimony from the witness.
Powell, 628 F.3d at 1256-58.
BACKGROUND
Magistrate Judge McCoy recommends that a default be entered against all of the
Defendants in this case for failure to comply with the Court’s Order. On December 1,
2015, Judge McCoy entered an order allowing the Eprights’ Counsel, the law firm of
Bohdan Newswiacheny, to withdraw. Judge McCoy directed the Defendant Chestelm
Health Care, Inc to obtain new counsel within thirty (30) days of the Order. Similarly,
Judge McCoy directed the Eprights to inform the Court within thirty (30) days on whether
they intended to proceed pro se or obtain counsel. The Eprights failed to respond to the
Court’s Order.
On January 4, 2016, Judge McCoy entered an Order to Show Cause directing the
Eprights to show cause why they failed to respond to the Court’s initial Order. The
Eprights were informed that if they did not respond to the Order to Show Cause within
fourteen (14) days that a default could be entered against them. Again, the Eprights failed
to respond to the Court. As a result of the Epright’s failure to respond to the Court’s
Orders, Judge McCoy issued the instant Report and Recommendation recommending
that a default should be entered against the Eprights.

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DISCUSSION
Fed. R. Civ. P. 16(f) and 37(b)(2) empower the court to sanction a party for failure
to obey a scheduling order or other pretrial order, including striking an answer or issuing
a default order against the offending party. Glanzrock v. Patriot Roofing Indus., Inc., No.
807-CV-535-T-33MAP, 2008 WL 3833950, at *1-2 (M.D. Fla. Aug. 15, 2008) judgment
entered, No. 8:07-CV-535-T-33MAP, 2009 WL 179634 (M.D. Fla. Jan. 26, 2009). Rule
16(f)(1) provides that: “On motion or on its own, the court may issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party ... fails to obey a
scheduling or other pretrial order.” Glanzrock, 2008 WL 3833950, at *1-2. Sanctions
under Rule 37(b)(2)(A) include striking the pleadings in whole or in part, dismissing the
case in whole or in part, and “rendering a default judgment against the disobedient party.”
Id.
Generally, the sanction of default is considered a drastic remedy that should be
resorted to “only if noncompliance is due to willful or bad faith disregard of court orders.”
Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543 (11th
Cir.1985) (citations omitted). The district court must find that less drastic sanctions would
not be equally effective in achieving compliance with the court's orders. Id. (citing Aztec
Steel Co. v. Fla. Steel Corp., 691 F.2d 480, 481-82 (11th Cir.1982)). However, when the
noncompliant party demonstrates “a flagrant disregard for the court and the discovery
process,” the “severe” sanction is not an abuse of discretion. Glanzrock, 2008 WL
3833950, at *1-2. (citing Aztec Steel Co., 691 F.2d at 481)).
In this instance, the Eprights have been directed on two occasions to obtain
counsel or inform the Court that they will be proceeding pro se. Yet to date, the Eprights

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have not responded to the Court’s Orders. The same goes for Chestelm Health Care,
Inc.
Based on the Eprights’ pattern of disregard for the Court’s Orders in this litigation,
lesser sanctions would not ensure their compliance and default is both appropriate and
necessary. 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.
Accordingly, it is now
ORDERED:
The Report and Recommendation (Doc. #34) is ACCEPTED and ADOPTED and
incorporated into this Order.
(1) The Clerk of the Court is directed to enter a DEFAULT JUDGMENT in favor of
the Plaintiff, State Farm Mutual Automobile Insurance Company against the
Defendants Evelyn Epright, Brinton Epright, and Chestelm Health Care, Inc.
(2) The Clerk is directed to CLOSE case.
DONE and ORDERED in Fort Myers, Florida this 17th day of February, 2016.

Copies: All Parties of Record

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