SUPER 8 WORLDWIDE, INC. v. BRIDGEPORT HOSPITALITY, LLC et al

Filing 26

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 24 Report and Recommendations and The The Individual Defendants' MANJULA MUTHUKUMAR, WARUNA SENEVIRATNE, MUTHUKUMAR VELLAICHAMY Answer is stricken, and the Clerk shall enter default. Signed by Judge Kevin McNulty on 8/7/2015. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SUPER 8 WORLDWIDE INC.,
Plaintiff,

Civ. No. 14-cv-4003 (KM)(JC)

MEMORANDUM OPINION & ORDER
BRIDGEPORT HOSPITALITY, LLC,
et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
THIS MATTER having come before the Court on the Report and
Recommendation (“R&R”) (Dkt. No. 24) issued by Magistrate Judge James
Clark recommending that the Defendants’ Answer be stricken, and that
default judgment be entered; and the parties having made no objection; and
the Court having considered the record before it pursuant to Federal Rule of
Civil Procedure 78, and for good cause shown; the Court decides as follows:
(1) The Plaintiff filed this action on June 23, 2014 against corporate
Defendant Bridgeport Hospitality, LLC (“Bridgeport”) and individual
Defendants Waruna Seneviratne, Muthukumar Vellaichamy, and
Manjula Muthukumar (“the Individual Defendants”) seeking damages
arising from the Defendants’ alleged termination of a Franchise
Agreement. (Dkt. No. 1) A summons was returned executed on July
31, 2014. (Dkt. No. 8)
(2) On or about August 14, 2014, Attorney Hydar A. Naqvi (“Mr. Naqvi”)
was retained to act as local counsel for the Individual Defendants.
(3) On August 15, 2015, Mr. Naqvi filed an Answer on behalf of the
Individual Defendants. (Dkt. No. 9) Corporate Defendant Bridgeport
never filed an Answer, and default was requested and entered against
Bridgeport on November 18, 2011. (Dkt. No. 11)
(4) Between December 2014 and March 2015, Mr. Naqvi attempted to
contact the Individual Defendants and their lead attorney, Marco
Montemayor, but received on response. On April 30, 2015, Mr. Naqvi
filed a Motion to Withdraw as Attorney for the Individual Defendants.
(Dkt. No. 17)

(5) On June 17, 2015, Magistrate Judge Clark issued an Order to Show
Cause ordering the Individual Defendants to appear in person on July
14, 2105 to show cause why Mr. Naqvi should not be permitted to
withdraw as counsel and why the Individual Defendants should not
have their Answer stricken and default entered against them for
nonparticipation in this action. (Dkt. No. 22) The Court did not receive
any papers from the Individual Defendants, and they did not appear
at the hearing. Mr. Naqvi, who appeared telephonically, stated that he
had not been in contact with the Individual Defendants. The Plaintiff
did not object to Mr. Naqvi’s withdrawal motion. For those reasons
and others stated on the record at the July 14, 2015 hearing, the
Court granted Mr. Naqvi’s motion to withdraw.
(6) Also on July 14, 2015, Magistrate Judge Clark issued an R&R
recommending that the Answer of the Individual Defendants be
stricken and default entered against them for failure to comply with
the Court’s orders. Neither party has objected to the R&R within the
applicable 14-day period. See Local Civil Rule 72.1(c) (14-day deadline
for objections).
(7) This Court reviews the Magistrate’s Report and Recommendation
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b)(3). “A judge of
the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1); see also U.S. v. Raciclatz, 447 U.S. 667, 680 (1980)
(stating that the district court judge has broad discretion in accepting
or rejecting the magistrate’s recommendation).
(8) If there are no objections, the district court has discretion to choose
an appropriate standard of review. See Thomas v. Am, 474 U.S. 140,
154 (1985) (the federal statute neither prohibits nor requires a
particular standard if no objections are filed); Goney v. Clark, 749
F.2d 5, 7 (3d Cir. 1984). At a minimum, “[w]hat is not objected to, the
district court reviews under the plain error or manifest injustice
standard.” Megaparts v. Highcom Security, No. 09-4052, 2010 U.S.
Dist. LEXIS 63497, at *4 (D.N.J. June 25, 2010); see, e.g., Banks v.
Gallagher, 686 F. Supp. 2d 499, 505 (M.D. Pa. 2009); Cruz v. Chater,
990 F. Supp. 375, 376—78 (M.D. Pa. 1998) (citing Advisory Committee
notes on Federal Rule of Civil Procedure 72(b), implementing 28
U.S.C. § 636(b)(1)(C)).
(9) The standard of review, however, is not critical. I find that Magistrate
Judge Clark rightly concluded that the Individual Defendants’ Answer
should be stricken and default entered against them for failure to
comply with the Court’s orders. See Fed. R. Civ. P. 37(b)(2) (stating

that a court may “strik[e] pleadings in whole or in part” for “fail[urej to
obey an order to provide or permit discovery”). I further find that
Magistrate Judge Clark correctly weighed the requisite factors
announced by the Third Circuit in Poulis v. State Farm Casualty Co.,
747 F.2d 863 (3d Cir. 1984) for deciding whether to impose a sanction
that may deprive a party of the right to proceed with or defend against
a claim.
IT IS THEREFORE on this 7th day of August, 2015,
ORDERED that Magistrate Judge Clark’s R&R is adopted in full. The Individual
Defendants’ Answer is stricken, and the Clerk shall enter default.

KEVIN MCNULTY, U.S.D.J./
C