WASMUTH, et al v. DAS, et al

Filing 52

ORDER signed by JUDGE JAMES A. BEATY, JR on 8/26/2013 adopting the Magistrate Judge's Recommendation [Doc. # 45 ]; that the Motion to Set Aside State Court Entry of Default and Default Judgment [Doc. # 38 ] and the Motion to Dismiss or in the Al ternative Motion for Summary Judgment [Doc. # 25 ] filed by Defendants United States of America and John Walsh are hereby GRANTED. Absent any basis for original jurisdiction over the remaining claims against Defendants Sanjiv Das, Paul Ince, Jerry Oc heltree, Eric P. Credle, Bill Beckmann, Maria Leonor Gerholdt, Donald R. Kimble, Stephen D. Steinour, and Mary Jo McGowan, IT IS FURTHER ORDERED that this case is REMANDED to the Chatham County District Court for disposition of all remaining motions. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARK ALLEN WASMUTH, A living
Immortal Spiritual Being, MARK ALLEN
WASMUTH, A living physical man,
MEREDITH PHILLIPPI WASMUTH,
A living Immortal Spiritual Being,
MEREDITH PHILLIPPI WASMUTH,
A living physical woman,
Plaintiffs,
v.
SANJIV DAS, Acting artificially as a
ordinary/officer/president for CitiMortgage
Inc., PAUL INCE, Acting artificially as
ordinary/officer/CFO for CitiMortgage Inc.,
JERRY OCHELTREE, Acting artificially as
ordinary/officer/president for First Bank Inc.,
ERIC P. CREDLE, Acting artificially as a
ordinary/officers for First Bank Inc.,
JOHN WALSH, Acting artificially as an
ordinary/Comptroller of the Currency,
BILL BECKMANN, Acting artificially as a
ordinary/officers for MERS,
MARIA LEONOR GERHOLDT, Acting
artificially as officers for Nationwide Title
Clearing and agent for the State of Florida,
DONALD R. KIMBLE, Acting artificially
as a ordinary/officer for Huntington
Bancshares Inc., STEPHEN D. STEINOUR,
Acting artificially as a ordinary/officer for
Huntington Bancshares Inc., MARY JO
MCGOWAN, Acting artificially for Nationwide
Title Clearing, MARY JO MCGOWAN,
Acting artificially as a ordinary/officers for
Huntington Bank Shares,
Defendants.

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1:11CV1013

BEATY, District Judge.

ORDER

This matter is before the Court on a Recommendation of the United States Magistrate
Judge recommending that the Motion to Set Aside State Court Entry of Default and Default
Judgment [Doc. #38] and the Motion to Dismiss or in the Alternative Motion for Summary
Judgment [Doc. #25] filed by Defendants United States of America and John Walsh be granted,
and that the action against the remaining Defendants be remanded to the Chatham County District
Court for disposition of other pending motions. The Recommendation was filed on July 9, 2013,
and notice was served on the parties pursuant to 28 U.S.C. § 636(b). On July 26, 2013, Plaintiffs
Mark Allen Wasmuth and Meredith Phillippi Wasmuth filed timely Objections to the
Recommendation [Doc. #49]. Thereafter, Defendants United States of America and John Walsh
filed a timely Reply [Doc. #51] to Plaintiffs’ Objections. The Court has now reviewed de novo1
the Objections and the portions of the Recommendation to which objection was made, and finds
that the Objections do not change the substance of the United States Magistrate Judge’s ruling.
The Magistrate Judge’s Recommendation [Doc. #45] is therefore affirmed and adopted for the
reasons set forth therein.
1

The Court notes that a Motion to set aside an entry of default, when no default
judgment was also entered, may be considered a non–dispositive matter subject to the clearly
erroneous or contrary to law standard of review by this Court. See Pinkston v. Atlanta Reg’l
Comm’n, No. 1:07-cv-1197-WSD-RGV, 2007 WL 4224814, at *2 (N.D. Ga. Nov. 27, 2007); J
& J Sports Prods., Inc. v. Martinez, No. 1:11CV754, 2013 WL 2147790, at *1 n.2 (M.D.N.C. May
16, 2013). However, because the State court in the present matter entered both an Entry of
Default and a Default Judgment against Federal Defendant John Walsh, the Court finds that the
Motion to Set Aside State Court Entry of Default and Default Judgment [Doc. #38] at issue in
this case to be at least potentially dispositive. See SLC Turnberry, Ltd. v. The American Golfer,
Inc., 240 F.R.D. 50, 52 (D. Conn. 2007). Therefore, the Court has undertaken a de novo review
to the extent that Plaintiffs object to the recommendation that the Motion to Set Aside State
Court Entry of Default and Default Judgment be granted.
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As such, the Court will grant the Motion to Set Aside State Court Entry of Default and
Default Judgment [Doc. #38] and the Motion to Dismiss or in the Alternative Motion for
Summary Judgment [Doc. #25] filed by Defendants United States of America and John Walsh.
As noted in the Recommendation, following the dismissal of Defendants United States of America
and John Walsh, the only claims remaining in this case appear to be certain state-law claims against
Defendants Sanjiv Das, Paul Ince, Jerry Ocheltree, Eric P. Credle, Bill Beckmann, Maria Leonor
Gerholdt, Donald R. Kimble, Stephen D. Steinour, and Mary Jo McGowan. The parties are not
completely diverse in this case, and the Court finds no alternative basis for original jurisdiction.
For the reasons set forth in the Recommendation, the Court, in its discretion, declines to exercise
supplemental jurisdiction over the remaining claims in this case. Therefore, the Court will remand
this matter to the Chatham County District Court for disposition of all remaining motions.
IT IS THEREFORE ORDERED that the Motion to Set Aside State Court Entry of
Default and Default Judgment [Doc. #38] and the Motion to Dismiss or in the Alternative Motion
for Summary Judgment [Doc. #25] filed by Defendants United States of America and John Walsh
are hereby GRANTED. Absent any basis for original jurisdiction over the remaining claims
against Defendants Sanjiv Das, Paul Ince, Jerry Ocheltree, Eric P. Credle, Bill Beckmann, Maria
Leonor Gerholdt, Donald R. Kimble, Stephen D. Steinour, and Mary Jo McGowan, IT IS
FURTHER ORDERED that this case is REMANDED to the Chatham County District Court for
disposition of all remaining motions.
This, the 26th day of August, 2013.

United States District Judge

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