United States of America v. Varmado

Filing 118

ORDER adopting 113 Report and Recommendation of Magistrate Judge, entering default judgment against Defendant, and closing case. Signed by Judge Joan A. Lenard on 12/22/2010. (mhz)

U n i t e d States of America v. Varmado

D o c . 118

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 07-61257-CIV-LENARD/GARBER U N IT E D STATES OF AMERICA, P l a in tif f , v. S H IR L E Y A. VARNADO, a/k/a S H I R L E Y ANN VARNADO, a/k/a, S H IR L E Y A. VARMADO, D e f e n d a n t. ________________________________/ O R D E R ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE J U D G E (D.E. 113), ENTERING DEFAULT JUDGMENT AGAINST D E F E N D A N T , AND CLOSING CASE T H I S CAUSE is before the Court on the Report and Recommendation of the M ag istrate Judge ("Report," D.E. 113), issued on November 15, 2010. The Report

re c o m m e n d s the Court enter final default judgment against Defendant for the amount sought p lu s interest, fees, and costs, as a result of Defendant's willful and bad faith failure to obey th e Magistrate Judge's discovery orders. On December 3, 2010, Defendant, pro se, filed her o b jec tio n s to the Report ("Objections," D.E. 115). Having considered de novo the Report, O b j e c tio n s , related pleadings, and the record, the Court finds as follows. I. P r o c ed u r a l History

O n September 5, 2007, Plaintiff commenced this lawsuit. The Amended Complaint s e e k s judgment against Defendant based on an overdue student loan. (See D.E. 24.) On

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M a rc h 24, 2008, the Court directed the Clerk to enter default against Defendant due to her f a ilu re to respond to the Amended Complaint and the Clerk did so the very same day. (S e e D.E. 27, 28.) On March 25, 2008, Plaintiff filed its motion for final default judgment w h ic h the Court granted two days later. (See D.E. 30, 31.) Defendant subsequently appealed (S ee D.E. 39.) On October 2, 2009, the Eleventh Circuit issued its Mandate (D.E. 65), vacating the d e f au lt judgment entered in this case and remanding for further proceedings based on the la c k of notice provided to Defendant of the pending default judgment. On October 7, 2009, th e Court reopened this case. (See D.E. 66.) On October 16, 2009, the Court referred all d is c o v e ry matters to the Magistrate Judge and ordered the Parties to confer and submit a joint s c h e d u lin g report, joint scheduling form, and joint consent form indicating consent or nonco n sen t to jurisdiction by a U.S. Magistrate Judge, within thirty days. (See D.E. 70.) On November 18, 2009, Plaintiff filed a motion to compel responses to its discovery req u ests. (See D.E. 74.) On November 19, 2009, Plaintiff filed a Notice with the Court indicating Defendant w a s not cooperating in the filing of a joint scheduling report, joint scheduling form, or joint c o n se n t form. (See D.E. 78.) Plaintiff indicated that despite obtaining a certified mail re c eip t the Defendant had never responded to its attempts to confer and file a scheduling re p o rt . On November 23, 2009, the Court issued an Order to Show Cause based upon

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P la in tif f 's representation and the lack of any scheduling progress. (See D.E. 79.) That Order to Show Cause stated, "on or before December 11, 2009, Defendant shall cooperate in c o m p letin g and filing a Joint Scheduling Report, Joint Scheduling Form, and Consent to J u ris d ic tio n form indicating consent or non-consent to issues before a U.S. Magistrate Judge, o r show cause why default should not be entered against Defendant for failure to comply w ith this Court's orders." Nothing was filed after the Court's Order to Show Cause and prior to December 11, 2009. O n December 16, 2009, the Magistrate Judge issued an Order granting Plaintiff's m o tio n to compel Defendant's response to its requests for production, requests for admission, an d interrogatories. (See D.E. 80.) On December 23, 2009, Plaintiff moved for entry of default against Defendant based u p o n her lack of cooperation with discovery or scheduling matters. (See D.E. 81.) On Ja n u a ry 2, 2010, the Court granted Plaintiff's motion and directed the Clerk to enter default a g a in s t Defendant. (See D.E. 82.) The Clerk entered default yet again on January 4, 2010. (S ee D.E. 84.) On January 12, 2010, Plaintiff again moved for default judgment. (See D.E. 8 7 .) On January 29, 2010, Defendant moved to set aside the entry of default. (See D.E. 8 8 .) On February 25, 2010, the Court granted Defendant's motion, set aside her default, and d en ied as moot Plaintiff's motion for default judgment. (See D.E. 90.) The Court's February 2 5 , 2010, Order stated, "[t]he Parties are directed to comply with this Court's October 16,

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2 0 0 9 , Order (D.E. 70), including the filing of a joint scheduling report and form, on or before M a rc h 25, 2010. Failure to comply may result in appropriate sanctions." On March 22, 2010, Plaintiff filed its Motion to Compel Response to Plaintiff's R e q u e s t for Execution of Joint Scheduling Report. (See D.E. 91.) In its motion, Plaintiff c o m p la in e d that Defendant was still not responding or attempting to cooperate in scheduling m a tte rs and Plaintiff requested a status conference. On March 25, 2010, the Court granted Plaintiff's Motion to Compel Response to P lain tiff 's Request for Execution of Joint Scheduling Report. (See D.E. 92.) The Court s ta te d , "Defendant is instructed to respond to Plaintiff's request for execution of a joint s c h e d u lin g report, on or before April 1, 2010, or show cause why default should not be e n ter e d against her. Failure to comply may result in appropriate sanctions. The Parties shall th e n have until April 8, 2010, to file the joint scheduling report and form, and joint consent f o rm ." (Id.) The Parties submitted a joint scheduling report later that day, or more than five m o n th s after the Court originally issued its Order directing the Parties to confer and submit p rop o sed scheduling dates. (See D.E. 93.) On March 30, 2010, Plaintiff filed a Motion for Contempt due to Defendant's failure to comply with the Magistrate Judge's discovery orders. (See D.E. 94.) On April 26, 2010, th e Magistrate Judge deferred ruling on the Motion for Contempt. (See D.E. 98.) In its O rd e r, the Magistrate Judge stated, "[i]t appears to the Court that the defendant continues to f a il to comply with Orders of this Court regarding her discovery obligations." Accordingly,

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th e Magistrate Judge directed Defendant to respond to Plaintiff's discovery requests within th irty days and further provided that, "[i]n the event that the defendant fails to comply with th is Order and the Court is so notified by the plaintiff, the Court shall enter an Order to Show C a u se requiring the defendant to appear before the Court to show cause why she should not b e held in contempt for willfully disregarding Orders of this Court." (Id. at 2.) The M a g is tra te Judge's Order further ordered that "the plaintiff shall have a copy of this Order s e rv e d upon the defendant and shall provide proof of such service with the Court." (Id.) O n April 27, 2010, Plaintiff filed a certificate of service documenting it had sent to D e f en d a n t via regular and certified mail a copy of the Magistrate Judge's April 26, 2010, O rd e r. (See D.E. 99.) Plaintiff indicated it sent the Order to Defendant's address at 8442 S .W . 44th Place, Davie, Florida. This address was the address listed in the Complaint and h a s been listed by Plaintiff throughout these proceedings. It is the address on file with the C o u rt. It is also the address that Defendant has continuously listed on all of her submissions in c lu d in g her Objections, filed as recently as December 2, 2010. On June 21, 2010, Plaintiff f iled a status report indicating that it was having trouble personally serving Defendant with th e Magistrate Judge's Order. (See D.E. 100.) On June 28, 2010, the Magistrate Judge p ro v id e d Plaintiff with an additional thirty days to serve Defendant with the Magistrate Ju d g e's Order. (See D.E. 101.) On July 1, 2010, Plaintiff filed a second status report indicating it was still unable to p e rs o n a lly serve Defendant. (See D.E. 102.) In its status report, Plaintiff indicated it had

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c o n f irm e d with the U.S. Postal Service that no change of address or mail forwarding requests w e re on file for Defendant's address. Plaintiff also indicated that property tax records d e m o n s tra te Defendant is still the owner of the property at the listed address. Plaintiff further in d ic a te d it had not received any mail returned from Defendant's address. On July 6, 2010, in response to Plaintiff's efforts, the Magistrate Judge issued an O rd e r setting a hearing for July 27, 2010, and stating, "[i]t appears to the Court that the d e f e n d a n t has exhibited a willful refusal to comply with this Court's Orders and provide all d is c o v e ry sought by the plaintiff. Such conduct is likely in contempt of this Court's Orders." (S e e D.E. 103.) The Magistrate Judge further ordered that a copy of the Order be served u p o n Defendant by the U.S. Marshal Service. On July 27, 2010, the Magistrate Judge cancelled the scheduled hearing upon word f ro m Plaintiff's counsel that the U.S. Marshal's Service had been unsuccessful in serving D e f en d a n t. (See D.E. 104.) On July 28, 2010, the U.S. Marshal's Service filed its return of u n -e x e c u ted service, demonstrating its several unsuccessful attempts to serve Defendant. (S ee D.E. 105.) On October 13, 2010, the Magistrate Judge granted Plaintiff's Motion for Contempt in part, stating: V arn ad o has repeatedly refused to permit discovery to proceed in this matter. S h e failed to comply with the Court's December 16, 2009 Order (DE 80) c o m p ellin g her to respond to the government's discovery requests and in ter ro g a to rie s on or before December 31, 2009. She then failed to comply w ith the Court's April 26, 2010 Order (DE 98), again compelling her to a d d re ss all outstanding discovery issues, this time within thirty days. In the 6

C o u rt's April 26, 2010 Order, Varnado was warned that if she did not comply, the Court would enter an Order to Show Cause requiring her to appear before th e Court to show cause why she should not be held in contempt for willfully d is re g a rd in g the Court's orders. (DE 98.) The government was directed to have a copy of that order served on Varnado. (Id.) In accordance with that direction, the government sent a copy of the order to V a rn a d o , at the only address she has ever provided to the Court, via both r e g u la r and certified mail. (DE 100.) Though the government received v e rif ic a tio n from the United States Postal Service that there was no change of a d d re s s or forwarding address on file for Varnado, the certified c o rre sp o n d e n c e was returned "unclaimed." (DE 100 and 102.) The c o rre sp o n d e n c e sent via regular mail, on the other hand, has not been returned. (D E 102.) Additionally, Varnado did not make herself available for personal s e rv i c e and therefore the government's attempt in that regard was also u n s u c c e s s f u l. (DE 100.) U p o n receiving the government's July 1, 2010 status report regarding the f a ilu re of service, the Court determined that Varnado was likely in contempt in that she had repeatedly exhibited, and continues to exhibit, a willful refusal to comply with the Court's orders and has failed to provide any of the d isc o v e ry sought by the government. (DE 103.) Accordingly, the Court set a h e a rin g on the government's motion for contempt and again ordered that the g o v e rn m e n t have a copy of that order served on Varnado by the United States M a rs h a l Service. (Id.) Consistent with previous efforts, the attempt to serve V a rn a d o failed, once again, and that hearing was consequently cancelled. (DE 1 0 4 .) Based on the foregoing and Varnado's pattern of willful disregard of this C o u rt's orders and her repeated refusal to permit discovery or to allow service th e Court hereby ORDERS as follows: 1 . The government's Motion for Contempt [94] is hereby GRANTED in part su c h that: a . Varnado shall respond to the government's discovery requests on or b e f o re October 25, 2010. Should she fail to do so, the Court will enter a Report and Recommendation recommending that the District Court e n te r a final default judgment in favor of the government for the a m o u n t sought plus interest, fees, and costs. b . The additional fees and costs incurred by the government in

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p re p a rin g its March 30, 2010 Motion for Contempt shall be assessed a g a in s t Varnado. 2 . The government shall attempt to have a copy of this Order served on the d e f en d a n t Shirley A. Varnado by the United States Marshal Service at 8442 S W 44th Place, Davie, FL 33328 and shall file proof of service, or failure th e re o f , in this cause. (D .E . 108 at 1-3.) On October 25, 2010, Defendant filed an Application to Proceed in Forma Pauperis. (S e e D.E. 110.) The Magistrate Judge denied that application on October 27, 2010.

(S e e D.E. 111.) On November 12, 2010, Defendant filed her response to Plaintiff's Motion f o r Contempt. (See D.E. 112.) II. R e p o r t and Objections

O n November 15, 2010, the Magistrate Judge issued his Report. The Report finds that " th e defendant's refusal to obey was not the result of negligence, misunderstanding, or the in a b ility to comply, but rather has been both willful as well as in bad faith." (Report at 2.) T h e Report further finds that Defendant's late filings "demonstrate that she is fully aware of th e Court's orders and that she is able to make contact with the Court when it suits her." (Id. at 3.) Finally, the Magistrate Judge further found that "any lesser sanction than an entry o f a default judgment would not suffice in compelling discovery in this matter." (Id.) On December 2, 2010, Defendant filed her Objections. Construing Defendant's pro s e pleading liberally, she claims the Report is clearly erroneous or contrary to law because th e re is no clear and convincing evidence that she had knowledge of the Court's orders and

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th e Magistrate Judge's orders are incorrect because there was no right to discovery in aid of e x e c u tio n . III. D is c u s s io n

A lth o u g h the underlying discovery motions are governed by Rule 72(a) of the Federal R u le s of Civil Procedure, the Court will address this matter de novo pursuant to Rule 72(b) a s the Magistrate Judge's Report is dispositive of this case. Additionally, a review of the M a g is tra te Judge's application of the law is de novo, as the "application of an improper legal s ta n d a rd . . . is never within a court's discretion." Johnson & Johnson Vision Care, Inc., v. 1 -8 0 0 Contacts, Inc., 299 F.3d 1242, 1246 (11th Cir. 2002) (citing Univ. of Georgia Athletic A s s 'n v. Laite, 756 F.2d 1535 (11th Cir. 1985)). Pursuant to Rule 37(b), the Court may issue a default judgment against a disobedient p a rty. FED. R. CIV. P. 37(b)(2)(A)(vi). As the Magistrate Judge noted, a "default judgment s a n c tio n requires a willful or bad faith failure to obey a discovery order." Malautea v. Suzuki M o to r Co., 987 F.2d 1536, 1542 (11th Cir. 1993). The record in this case provides o v erw h elm in g evidence of Defendant's bad faith and willful failure to obey the Court's o rde rs. Moreover, Defendant's objections that the Magistrate Judge's discovery orders were inv ali d are without merit as the discovery orders she ignored were pre-judgment orders c o m p e llin g her to engage in discovery. Even if it were somehow reasonable for her to think t h e Magistrate Judge's orders were invalid, other avenues were available to her other than e v a sio n and non-compliance. Accordingly, consistent with this Order, it is hereby

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O R D E R E D AND ADJUDGED that: 1. T h e Report and Recommendation of Magistrate Judge Barry L. Garber (D.E. 1 1 3 ) , issued on November 15, 2010, is ADOPTED; 2. D e f a u lt judgment is ENTERED against Defendant Shirley A. Varnado, a/k/a S h irley Ann Varnado, a/k/a Shirley A. Varmado, and Plaintiff is directed to s u b m it a proposed order entering default final judgment within fourteen (14) d ays of the date of this Order; 3. T h is case is now CLOSED.

D O N E AND ORDERED in Chambers at Miami, Florida, this 22nd day of December, 2010.

____________________________________ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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