U.S. Commodity Futures Trading Commission v. McCullough et al

Filing 18

ORDER granting 7 Motion for Entry of Default and granting 13 Motion for Service by Publication. The Clerk of Court is DIRECTED to enter a default as to Defendant Mayhew. The parties are reminded to read the order in its entirety for details. Signed by Senior Judge James C. Fox on 9/2/2014. (Grady, B.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-83-F

U.S. COMMODITY FUTURES
TRADING COMMISSION,
Plaintiff,

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)
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V.
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RONALD EARL MCCULLOUGH
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and DAVID CHRISTOPHER MAYHEW, )
Defendants. )

ORDER

___________________________ )
This matter is before the court on the CFTC's motion for entry of default [DE-7] and

motion for service by publication [DE-13]. Both motions are ALLOWED. With respect to
service by publication on Defendant McCullough, the court finds that CFTC has made a
sufficient showing that "deliberate avoidance and obstruction by the defendant [has] made the
givingofnoticeimpossible"underothermeansofservice. S.E.C. v. Tome, 833 F.2d 1086,1092
(2d Cir. 1987); see also Standard Oil Co. v. New Jersey, 341 U.S. 428, 433 (1951) ("This court
has not hesitated to approve of resort to publication as a customary substitute in another class of
cases where it is not reasonably possible or practicable to give more adequate warning."). CFTC
has amply demonstrated that it has diligently pursued service by other means and that the
defendant is deliberately avoiding service. See Mem. in Supp. of Mot. for Service by Publication
[DE-14]. Accordingly, the motion for service by publication [DE-13] is ALLOWED. CFTC has
also shown good cause to extend the deadline for effecting service to and including 60 days from
the day the CFTC's notice is first published.

Because Mayhew has failed to plead or otherwise defendant, the court is required to enter
his default. Fed. R. Civ. P. 55. The motion for entry of default [DE-7] is therefore ALLOWED
and the Clerk of Court is DIRECTED to enter a default as to Defendant Mayhew. However, if
CFTC pursues a default judgment against Mayhew and not McCullough, the court requests the
CFTC's position on whether default judgment is appropriate in these circumstances. See, e.g.,
Frow v. De La Vega, 82 U.S. 552 (1872).

SO ORDERED.
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This the _·l_ day of September, 2014.

JAMES C. FOX
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Senior United States District Judge

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