Surf's Up LLC v. Rahim et al

Filing 61

ORDER RULING ON REPORT AND RECOMMENDATION: It is hereby ORDERED that the Magistrate Judge's Report (ECF No. 43 ) is ADOPTED. The Clerk of Court shall enter default against Defendants Myrtle Laser and BusinessVentures, and this matter shall be referred to the Magistrate Judge for further proceedings as to Defendant Rahim. Signed by the Honorable Bruce Howe Hendricks on 11/7/2016. (hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Surf’s Up, LLC,

)
)
Plaintiff,
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v.
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Rick Rahim, Myrtle Laser Tag, LLC,
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and BusinessVentures.com, LLC,
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Defendants.
)
________________________________)

Civil Action No. 4:14-4706-BHH-KDW

ORDER

Plaintiff Surf’s Up, LLC, filed this trademark action on December 12, 2014. On
February 27, 2015, Plaintiff filed a request for entry of default as to Defendant Myrtle Laser
Tag, LLC, (“Myrtle Laser”) and the Clerk granted Plaintiff’s request on March 2, 2015. Less
than a month later, Myrtle Laser filed a motion to set aside default, and all Defendants filed
a motion to dismiss the action, or in the alternative, for a more definite statement. Plaintiff
then filed a motion for preliminary injunction. On February 18, 2016, Defendants’ attorney,
Benjamin A. Parker, moved to be relieved as counsel based on an alleged breakdown in
communication between attorney and client.
On March 21, 2016, this Court entered an order granting counsel’s motion to
withdraw; granting Myrtle Laser’s motion to set aside the entry of default; denying
Defendants’ motion to dismiss; and denying Plaintiff’s motion for a preliminary injunction.
In its order, the Court instructed the corporate Defendants, Myrtle Laser and
BusinessVentures.com, LLC (“Business Ventures”) that corporate defendants cannot
proceed pro se in this Court and that they needed to obtain new counsel within 45 days.
See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,

201-02 (1993). Certified mail receipts indicate that Defendants received the Court’s March
21 order. (ECF Nos. 36-38.)
Based on Defendant Rick Rahim’s (“Rahim”) pro se status, the Court referred the
matter to a United States Magistrate Judge for preliminary determinations, in accordance
with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). On March 24,
2016, Magistrate Judge Kaymani D. West issued an order directing Rahim to notify the
Court in writing of any change of address and again instructing the corporate Defendants
that they must obtain substitute counsel by May 5, 2016. The Magistrate Judge specifically
instructed the corporate Defendants that if they failed to obtain counsel, she would
recommend that default be entered against them. The Clerk of Court served the March 24
order on each Defendant by regular mail. The order sent to BusinessVentures was
returned as undeliverable, but it appears that Defendants Rahim and Myrtle Laser received
the March 24 order. When the corporate Defendants failed to obtain new counsel by the
deadline, or to otherwise communicate with the Court, the Magistrate Judge entered a
Report and Recommendation (“Report”), outlining the history of this case and
recommending that default be entered against Defendants Myrtle Laser and
BusinessVentures.
The Clerk of Court mailed a copy of the Magistrate Judge’s Report to all Defendants’
last known addresses by regular and certified mail. It appears that the Report was served
on Defendant Rahim but was returned as undeliverable as to Defendants Myrtle Laser and
BusinessVentures. Accordingly, on October 12, 2016, the Magistrate Judge entered a text
order instructing the Clerk of Court to resend the Report by both regular and certified mail
to all Defendants at their last known address and to the principal office for
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BusinessVentures, LLC, at P.O. Box 1170 in Great Falls, Virginia, 22066-8170. The
Magistrate Judge also reset the time for filing objections to the Report, giving Defendants
until October 31 to do so. On October 31, 2016, however, the most recent order was
returned as undeliverable to Defendant Myrtle Laser.
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only of those portions of the Report to
which specific objections are made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a
timely filed objection, a district court need not conduct a de novo review, but instead must
‘only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After a review of the record, the corporate Defendants have failed to obtain new
counsel or otherwise communicate with the Court, and no party has filed objections to the
Magistrate Judge’s Report.

Ultimately, because Defendants Myrtle Laser and

BusinessVentures have failed to comply with the Court’s instructions, have failed to obtain
new counsel, and have failed to file objections to the Magistrate Judge’s Report, the Court
agrees with the Magistrate Judge that an entry of default is warranted against the corporate
Defendants. Accordingly, it is hereby ORDERED that the Magistrate Judge’s Report (ECF
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No. 43) is ADOPTED. The Clerk of Court shall enter default against Defendants Myrtle
Laser and BusinessVentures, and this matter shall be referred to the Magistrate Judge for
further proceedings as to Defendant Rahim.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
November 7, 2016
Charleston, South Carolina

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