ING Bank v. First Continental Mortgage, Inc. et al

Filing 311

ORDER ADOPTING Report and Recommendation 308 ; STRIKING Defendant First Continental's Answer to the Complaint 209 ; DIRECTING the Clerk to enter DEFAULT against Defendant First Continental, pursuant to Fed. R. Civ. P. 55(a); DENYING as moot 286 Plaintiff's Motion for Summary Judgment; DIRECTING the Clerk to enter JUDGMENT against Attorney William D. Tucker, personally; STAYING the case as to Defendant Raymond Moatz only. Signed by Judge Mary S. Scriven on 5/10/2011. (KWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

ING BANK, FSB,
Plaintiff,
v.

Case No.: 6:09-cv-1708-ORL-35-DAB

FIRST CONTINENTAL MORTGAGE,
INC., et al.,
Defendants.
_________________________________/
ORDER
THIS CAUSE comes before the Court for consideration of the Response to the
Order to Show Cause, Motion for Reconsideration, and Motion to Withdraw filed by
Defendants First Continental Mortgage (“First Continental”) and alleged principal
Raymond Moatz III (“Moatz”).1 (Dkt. 306) On April 13, 2011, United States Magistrate
Judge David A. Baker issued (1) an Order denying the motions and (2) a Report and
Recommendation recommending:
[T]hat the pleadings of First Continental Mortgage be
stricken and a default be entered against it, and further, that
a judgment be entered against Attorney William Tucker[.]
(Dkt. 308) (emphasis in original) No objection was filed to the Report and
Recommendation, and the deadline to do so has passed.
In the Eleventh Circuit, a district judge may accept, reject or modify the
magistrate judge's report and recommendation after conducting a careful and complete
1

The Suggestion of Bankruptcy filed by Defendant Moatz pursuant to 11 U.S.C. § 362 (Dkt. 302)
triggered an automatic stay of the case as it relates to this particular defendant.

1

review of the findings and recommendations. 28 U.S.C. § 636(b)(1); see Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A
district judge “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”

28

U.S.C. § 636(b)(1)(C). This requires that the district judge “give fresh consideration to
those issues to which specific objection has been made by a party.” Jeffrey S. v. State
Bd. of Educ., 896 F.2d 507, 512 (11th Cir.1990) (quoting H.R. 1609, 94th Cong. § 2
(1976)). In the absence of specific objections, there is no requirement that a district
judge review factual findings de novo and the court may accept, reject, or modify, in
whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C); see
Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). The district judge reviews
legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v.
Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994).
Under the federal rules, a district court, on motion or sua sponte, may strike
pleadings in whole or in part and/or enter a default in the case if a party or its attorney:
(A)

[F]ails to appear at a scheduling or other pretrial
conference;

(B)

[I]s substantially unprepared to participate—or does
not participate in good faith—in the conference; or

(C)

[F]ails to obey a scheduling or other pretrial order.

FED. R. CIV. P. 16(f)(1)(A)-(C). A district court may impose other sanctions—including
monetary sanctions—for the purpose of punishing either the lawyers or parties for
egregious behavior. See Rasmussen v. Cent. Fla. Council BSA, Inc., No. 10-12238,
2011 U.S. App. LEXIS 2135, at *1-2 (11th Cir. Feb. 2, 2011); see also FED. R. CIV. P.
16(f) and 37; LOCAL RULES 9.05(c), (e).
2

Upon review of this record, the Court adopts Magistrate Judge Baker’s
conclusions concerning Defendant First Continental and finds that imposing sanctions
against the defendant is wholly appropriate. Accordingly, this Court hereby strikes First
Continental’s Answer to the Complaint (Dkt. 209) and directs the CLERK to enter a
default against the defendant for a “[failure] to plead or otherwise defend.” FED. R. CIV.
P. 55(a). Additionally, the Court concludes that the conduct of Mr. Tucker, as found by
Judge Baker, warrants the imposition of the sanctions imposed.
Upon consideration of the Report and Recommendation, in conjunction with an
independent examination of the file, the Court concludes that the Report and
Recommendation should be adopted, confirmed, and approved in all respects.
Accordingly, it is ORDERED that the Report and Recommendation (Dkt. 308) is
CONFIRMED and ADOPTED as part of this Order.
IT IS FURTHER ORDERED that Defendant First Continental’s Answer to the
Complaint (Dkt. 209) is STRICKEN.
IT IS FURTHER ORDERED that the CLERK shall enter a DEFAULT against
Defendant First Continental, pursuant to FED. R. CIV. P. 55(a), for its failure to attend
mediation in violation of the Court’s Order and apparent abandonment of its defense
noted by its failure to respond to either the Report and Recommendation or the pending
motion for summary judgment.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt.
286) is DENIED as moot.

3

IT IS FURTHER ORDERED that the CLERK enter JUDGMENT against Attorney
William D. Tucker, personally, in the amount of $2,500.00. Attorney Tucker shall pay to
Plaintiff $2,500.00, together with post-judgment interest at the statutory rate.
A review of the record reveals that the following defendants remain in this case:
Elite Lending Solutions, LLC; Analyn Laguardia; Jerwin Paz; and Scott Warneke. IT IS
FUTHER ORDERED that PLAINTIFF shall file notice with this Court, on or before May
24, 2011 of its intention to pursue claims against these remaining defendants.
IT IS FURTHER ORDERED that although automatically granted, this Court
hereby expressly states that, pursuant to the provisions of 11 U.S.C. § 362, this case is
automatically STAYED as to Defendant Moatz. Plaintiff may seek to reinstate the
action against Defendant Moatz to active status, upon proper motion, at the conclusion
of the bankruptcy proceedings. If a portion of this suit is resolved by the bankruptcy
proceedings, Plaintiff shall promptly move for dismissal of this case against Defendant
Moatz. Furthermore, Plaintiff is directed to file and serve on or before August 10,
2011 and every three months thereafter, a status report regarding the bankruptcy
proceeding.
DONE and ORDERED in Orlando, Florida, this 10th day of May 2011.

Copies furnished to:
Counsel of Record
Any Unrepresented Party
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