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.)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:14-CV-83-F U.S. COMMODITY FUTURES TRADING COMMISSION, Plaintiff, ) ) ) ) ) V. ) RONALD EARL MCCULLOUGH ) 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. ~ This the _┬Ěl_ day of September, 2014. JAMES C. FOX '~ Senior United States District Judge 2

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