Boards of Trustees of Ohio Laborers' Fringe Benefit Programs v. Dan-Ray Construction, LLC et al

Filing 33

REPORT AND RECOMMENDATION: It is RECOMMENDED that the Court direct the Clerk to enter default against Defendants and that, once default is entered, that Plaintiffs be permitted to move for default judgment re 1 Complaint filed by Boards of Trustees of Ohio Laborers' Fringe Benefit Programs. Objections to R&R due by 3/19/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on March 5, 2018. (jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BOARDS OF TRUSTEES OF
OHIO LABORERS’ FRINGE
BENEFIT PROGRAMS,
Plaintiffs,
Case No. 2:17-cv-180
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

DAN-RAY CONSTRUCTION, LLC,
et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendants’ failure to respond to the
Court’s Show Cause Order. (ECF No. 32.)
On February 16, 2018, this matter came before the Court for a status conference. (ECF
Nos. 31, 32.)1 While counsel for Plaintiffs appeared and participated in the conference,
Defendants failed to appear for the conference, which was their second failure in as many
months. (ECF No. 32.) The Court directed Defendants to show cause within fourteen days why
the Court should not enter default against them for failure to appear and defend. (Id.) The Court
specifically advised Defendants that default judgment could be entered against them if they
failed to respond to the Show Cause Order. (Id.)

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32.)

The Court’s Order mistakenly refers to the wrong date, December 14, 2018. (ECF No.

To date, Defendants have not responded to the Court’s Show Cause Order. Under the
present circumstances, it is therefore RECOMMENDED that the Court direct the Clerk to enter
default against Defendants and that, once default is entered, that Plaintiffs be permitted to move
for default judgment.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report an recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waiver. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

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IT IS SO ORDERED.

Date: March 5, 2018

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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