National Credit Union Administration Board, as liquidating agent for the St. Paul Croatian Federal Credit Union v. Marinac, LLC et al

Filing 99

Memorandum Opinion and Order The Court declines to adopt Magistrate Judge Bachman's 95 Report and Recommendation and recommits this matter to the Magistrate Judge to issue a second report and recommendation, once the record indicates that the Cross-Defendants have been properly served. Judge Benita Y. Pearson on 1/26/2012. (S,L)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NATIONAL CREDIT UNION
ADMINISTRATION BOARD, etc.,
Plaintiff,
v.
MARINAC, LLC, et al.,
Defendants.

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CASE NO. 1:10CV2505

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 95]

I. INTRODUCTION
Before the Court is the Report and Recommendation of Magistrate Judge William H.
Baughman, Jr. (ECF No. 95) recommending that Cross-Claimant Petar Mlinac’s Motion for
Default Judgment (ECF No. 84) against Cross-Defendants Dragan Maric, Marinac, LLC, Meteor
Company, Inc. be granted. For the following reasons, the Report and Recommendation is not
adopted and the matter is recommitted to the Magistrate Judge, as explained herein.
II. DISCUSSION
On November 3, 2010, Plaintiff National Credit Union Administration Board
(“Plaintiff”), as Liquidating Agent for the St. Paul Croatian Federal Credit Union intiated this
lawsuit by filing a Complaint for Judgment on Promissory Notes and Other Equitable Relief
(ECF No. 1) against Petar Mlinac, Marinac, LLC, Dragan Maric, Meteor Company, Inc., and
Durda Maric. On November 18, 2010, Petar Mlinac answered the Complaint and filed a crossclaim against the remaining defendants. ECF No. 12.

(1:10CV2505)

On January 18, 2011, the above-entitled action was reassigned from Chief Judge
Solomon Oliver, Jr. to the undersigned pursuant to General Order 2011-4.
On March 16, 2011, Plaintiff, Petar Mlinac, and Durda Maric consented to the
jurisdiction of Magistrate Judge William H. Baughman, Jr. ECF No. 40. Thereafter, the case
was transferred by the undersigned to Judge Baughman to provide a Report and
Recommendation with respect to those claims involving parties who had not consented to the
jurisdiction of the Magistrate Judge, and to excise jurisdiction over the remaining claims and
parties. See Order of Reference (ECF No. 41).
On November 1, 2011, Petar Mlinac filed a Motion for Default Judgment against those
Cross-Defendants–Dagan Maric, Marinac, LLC, and Meteor Company, Inc.–who did not consent
to the Magistrate Judge’s jurisdiction. After a hearing on the motion was held (ECF No. 92), the
Magistrate Judge submitted a Report and Recommendation (ECF No. 95) on November 28,
2011, recommending that the pending motion for default judgment be granted and that the Court
enter judgment on Petar Mlinac’s motion in the form set forth in ECF No. 95-1.
28 U.S.C. § 636(b)(1)(C) provides that the Court “may accept, reject, or modify, in whole
or in part, the findings or recommendations” made by the Magistrate Judge and “recommit the
matter” to the Magistrate Judge with instructions.
Having reviewed Magistrate Judge Baughman’s report, the Court declines to adopt the
recommendation provided therein. Magistrate Judge Baughman’s recommendation was
informed by his finding that the un-responsive Cross-Defendants had been properly served with

(1:10CV2505)
process of the cross-claims, and had subsequently failed to appear, answer, plead or otherwise
respond to the cross-claims within twenty-one days after sevice therof. ECF No. 95-1. The
finding that the Cross-Defendants had been properly served is not supported by the record.
Specifically, the record lacks any indication that Cross-Defendants Dragan Maric, Marinac, LLC,
and Meteor Company, Inc. were served in accordance with Fed. R. Civ. P. 4. See Fed. R. Civ. P.
5(a)(2) (“No service is required on a party who is in default for failing to appear. But a pleading
that asserts a new claim for relief against such a party must be served on that party under Rule
4.”).
The Court therefore declines to adopt Magistrate Judge Bachman’s Report and
Recommendation and recommits this matter to the Magistrate Judge to issue a second report and
recommendation, once the record indicates that the Cross-Defendants have been properly served.

IT IS SO ORDERED.

January 26, 2012
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge