Castle v. The State of Florida et al

Filing 10

ORDER denying 2 Motion for Default Judgment; Denying 3 Motion for summary judgment; Adopting Report and Recommendations -re 5 Report and Recommendations. Signed by Judge Carlos E. Mendoza on 6/27/2018. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

TOMMY CHANCI CASTLE, SR.,
Plaintiff,
v.

Case No: 6:18-cv-243-Orl-41GJK

THE STATE OF FLORIDA,
GOVERNOR RICK SCOTT and
INTERNAL REVENUE SERVICE,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Motion for Default Judgment (Doc. 2) and
Motion for Summary Judgment (Doc. 3). United States Magistrate Judge Gregory J. Kelly issued
a Report and Recommendation (Doc. 5), in which he recommends denying both motions. First,
Judge Kelly recommends denying Plaintiff’s Motion for Default Judgment because Plaintiff has
not provided any evidence that Defendants were ever served in this case. Second, Judge Kelly
recommends denying Plaintiff’s Motion for Summary Judgment because Defendants have not
made an appearance in this case, and no discovery has been conducted. Plaintiff filed an Objection
(Doc. 6), in which he argues that Defendants were served via certified mail and that he has
provided the Court with sufficient evidence for entry of summary judgment.
With regard to the Motion for Default Judgment, as Judge Kelly pointed out, Plaintiff has
not obtained a default in accordance with Federal Rule of Civil Procedure 55. Additionally, the
information contained in Plaintiff’s Objection is insufficient to establish that Defendants were
served in accordance with Federal Rule of Civil Procedure 4.

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As to Plaintiff’s Motion for Summary Judgment, Defendants have not appeared. If they
were properly served, then the appropriate avenue for Plaintiff to take is to obtain a Clerk’s default
and move for default judgment, not summary judgment. Phillips Factors Corp. v. Harbor Lane of
Pensacola, Inc., 648 F. Supp. 1580, 1582–83 (M.D.N.C. 1986); see also United States v. Estate of
Segel, No. 8:08-cv-2196-T-23EAJ, 2010 WL 1730749, at *1 (M.D. Fla. Apr. 27, 2010) (construing
motion for summary judgment as a motion for default judgment). If, on the other hand, Defendants
were not properly served, then that must be done, and they must be given the opportunity to appear
and respond to Plaintiff’s allegations.
Finally, Plaintiff asserts that he has appropriately paid the filing fee. The Court acknowledges
that Plaintiff’s filing fee payment was received on February 20, 2018.
In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:

1. The Report and Recommendation (Doc. 5) is ADOPTED and CONFIRMED as
set forth in this Order.
2. Plaintiff’s Motion for Default Judgment (Doc. 2) and Motion for Summary
Judgment (Doc. 3) are DENIED.
DONE and ORDERED in Orlando, Florida on June 27, 2018.

Copies furnished to:
Unrepresented Party

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