United States of America v. Poole et al

Filing 54

ORDER to appear. Sandi D. Maggert is ORDERED, as the general guardian of P.M., to appear on behalf of her minor daughter. Sandi D. Maggert shall do so by filing a written response with this Court on or before April 24, 2017. The United States shall ensure that a copy of this order is delivered to Sandi D. Maggert and shall notify the Court on the docket of such service. See the Order for details. Signed by Magistrate Judge Philip R. Lammens on 4/10/2017. (CAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No: 5:16-cv-535-Oc-39PRL

DONNA MAGGERT POOLE, LAUREN
MAGGERT, P. M., BOB MCKEE and
SANDI D. MAGGERT
Defendants.

ORDER
Before the Court is the United States’ motion for final default judgment. (Doc. 51). In
the motion, the United States seeks relief against a minor, P.M. Initially, the minor’s mother,
Sandi D. Maggert (who is also a Defendant here and who has declined to answer (Doc. 29)),
attempted to waive service on P.M.’s behalf. Then the United States re-served P.M. through
personal service of her mother. (Docs. 46, 47). Despite service, no one has appeared on behalf
of P.M.
Under Federal Rule of Civil Procedure 55(b), a court may enter default judgment “against
a minor or incompetent person only if represented by a general guardian, conservator, or other like
fiduciary who has appeared.” (Emphasis added). At the end of the United States’ motion, it
requests that the Court consider the interests of P.M. and conclude that the minor’s interests have
been properly noticed and protected by her mother, Sandi D. Maggert. (Doc. 51 at pp.8–11); see
also Fed. R. Civ. P. 17(c)(1)(A) (noting that a general guardian may defend a suit on behalf of a
minor).

Yet the United States does not explain what exception, if any, allows contravention of Rule
55(b)’s plain language, which states that default judgment may be entered against a minor only
after an appearance of a general guardian or a like fiduciary. For instance, the United States cites
with approval an opinion from a similar case, in which the court appointed a father (who himself
was in default) as guardian ad litem for his minor children and gave him a deadline to consent to
the appointment, absent which the court would then enter default judgment against the minors.
(Doc. 51 at pp.10–11). But that court did not explain why it declined to follow Rule 55(b)’s plain
language. United States v. Noble, 269 F. Supp. 814, 816 (E.D.N.Y. 1967). Thus, unless and
until an appearance is made in P.M.’s behalf by a general guardian or a like fiduciary, the Court
cannot grant the requested relief in favor of the United States and against P.M. See Nationwide
Mut. Fire Ins. Co. v. Creation’s Own Corp., S.C., No. 6:11-CV-1054-ORL-28, 2011 WL 6752561,
at *4 (M.D. Fla. Nov. 16, 2011), report and recommendation adopted, No. 6:11-CV-1054-ORL28, 2011 WL 6752557 (M.D. Fla. Dec. 22, 2011) (stating that “even if service is adequate, there
is no showing that any default judgment can be entered here that is binding as to the minor’s
interest, absent the appearance of an appropriate fiduciary”).
While I agree with the government that where, as here, there appears to be no conflict
between the interests of the minor, P.M., and her mother, Sandi D. Maggert, that the mother can
serve as the minor’s general guardian in defending the minor’s interests in the litigation. Fed. R.
Civ. P. 17(c). But I disagree that a default judgement can be entered as to the minor without at
least an appearance on her behalf, even if it is one disclaiming an interest.
As such, to ensure compliance with the plain language of Rule 55, Fed. R. Civ. P., and in
consideration of the best interests of P.M., Sandi D. Maggert is ORDERED, as the general
guardian of P.M., to appear on behalf of her minor daughter and to state whether P.M. opposes the

-2-

relief the United States seeks here. Sandi D. Maggert shall do so by filing a written response with
this Court on or before April 24, 2017. If Sandi D. Maggert fails to respond to this order or
otherwise files a response where she declares herself unfit or otherwise unwilling to serve as the
general guardian of P.M., then the United States shall move the Court for the appointment of a
guardian ad litem. The United States shall ensure that a copy of this order is delivered to Sandi
D. Maggert and shall notify the Court on the docket of such service.
DONE and ORDERED in Ocala, Florida on April 10, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

-3-