Estate of Gregory V. Faull v. McAfee et al

Filing 55

ORDER adopting 51 REPORT AND RECOMMENDATIONS re 50 MOTION for miscellaneous relief, specifically Plaintiff's Renewed Motion to Set Pre-trial Conf or Jury Trial Date & to Extend Date to Enter Default Judgment. Signed by Judge Gregory A. Presnell on 10/16/2015. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ESTATE OF GREGORY V. FAULL,
Plaintiff,
v.

Case No: 6:13-cv-1746-Orl-31KRS

JOHN MCAFEE,
Defendant.

ORDER
This matter comes before the Court on Plaintiff’s Motion to Set Pre-Trial Conference or
Jury Trial for Proof of Damages as to Defendant McAfee and to Extend the Date to Enter a
Default Judgment (Doc. 50), which was filed on June 16, 2015. A clerk’s default was entered
against the Defendant, John McAfee (“McAfee”), on January 27, 2014. (Doc. 41).
On September 14, 2015, the United States Magistrate Judge issued a report (Doc. 51)
recommending that the motion be denied. More particularly, Judge Spaulding determined that (1)
the well-pleaded allegations of the Amended Complaint (Doc. 12) were insufficient to establish
McAfee’s liability under any of the four purported causes of action set forth in that pleading and
(2) the Plaintiff was not entitled to a jury trial to determine damages. (Doc. 51 at 8).
On October 13, 2015, the Plaintiff filed an objection (Doc. 54) to the Magistrate Judge’s
report to the extent that it recommended denying entry of default judgment as to Count I of the
Amended Complaint – a claim under the Florida Wrongful Death Act, Fla. Stat. §§ 768.16-.26 –
and insofar as it found that Plaintiff was not entitled to a jury trial as to damages. 1

1

The Plaintiff also objected to Judge Spaulding’s suggestion that Florida law might not
apply in the instant case, as all of the relevant events at issue appear to have occurred in Belize.

After an independent de novo review of the record, the Court concurs with the
recommendations of the Magistrate Judge. In particular, the Court agrees that the pertinent
allegations of the Amended Complaint – such as that McAfee “either directly or through his
behest or by his agents … conspired to and caused the death of Faull by a gunshot to his head”
(Doc. 12 at 3) – are too vague and conclusory to sustain a default judgment against McAfee as to
the wrongful death claim. In addition, while arguing that the Court should exercise discretion to
grant a jury trial as to damages, the Plaintiff does not take issue with the Magistrate Judge’s
determination that federal law does not require a jury trial under these circumstances.
Finally, the Plaintiff requests that, if the Court follows the Report and Recommendation,
the Plaintiff be allowed to file a second amended complaint “that pleads all the known facts
establishing that McAfee directly or through his agents tortured and killed Faull.” The Court will
grant this request. Accordingly, it is hereby
ORDERED that
1.

The Report and Recommendation of the Magistrate Judge (Doc. 51) is ADOPTED

AND CONFIRMED and made a part of this order;

(Doc. 51 at 4). However, as Judge Spaulding did not make a recommendation to that effect, the
Plaintiff’s objection on this score is premature and will not be addressed in this order.

-2-

2.

Plaintiff’s Motion to Set Pre-Trial Conference or Jury Trial for Proof of Damages

as to Defendant McAfee and to Extend the Date to Enter a Default Judgment (Doc. 50) is
DENIED; and
3.

The Plaintiff is granted leave to file an amended pleading, as set forth above, on or

before October 26, 2015.
DONE and ORDERED in Chambers, Orlando, Florida on October 16, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Party

-3-