JTH Tax, Inc. v. Hines

Filing 50

MEMORANDUM ORDER re: 35 Motion for Default Judgment; 47 Report and Recommendations. The court, having examined the Objections to the R&R filed by the Plaintiff, and having made de novo findings with respect thereto, does hereby O VERRULE the Plaintiff's Objections; ADOPT AND APPROVE, with the exception of the Magistrate Judge's finding of no dilatory conduct, the findings and recommendations set forth in the R&R of the United States Magistrate Judge, filed on Decemb er 15, 2016, ECF No. 47; DENY the Plaintiff's Motion filed on October 13, 2016, ECF No. 35; and DIRECT the Clerk to set aside the entry of default against the Defendant. IT IS SO ORDERED. Signed by Chief District Judge Rebecca Beach Smith and filed on 1/18/17. Copies distributed to all parties 1/18/17. (ldab, )

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

JTH TAX, INC. d/b/a
LIBERTY TAX SERVICE,

Plaintiff,
CIVIL ACTION NO.

V.

2!l5cv558

CHARLES HINES,
Defendant.
MEMORANDUM ORDER

This

Motion

matter

for

Support,

comes

Default

filed

on

before

Judgment

October

the

court

on

("Motion")

13,

2016.

the

and

EOF

Plaintiff's

Memorandum

Nos.

35,

36.

Defendant filed his Response in Opposition on November 7,
ECF No.

40.

Motion

to

pursuant
Federal

On November 16,

2016,

United

States

to

the

provisions

Rule

of

Civil

28

Procedure

Judge

Robert

U.S.C.
72(b),

§
to

including evidentiary hearings,

if necessary,

the

proposed

undersigned

applicable,
Motion.

The
("R&R")

and

ECF No.

district

judge

recommendations

The
2016.

this court referred the above

Magistrate

of

in

for

Krask,

636 (b)(1)(B)
conduct

and

hearings,

and to submit to

findings

the

J.

of

disposition

fact,
of

if
the

43.

Magistrate

Judge

on December 15,

filed

2016.

his

ECF No.

Report
47.

and Recommendation

The Magistrate Judge

recommended denying the Plaintiff's Motion and setting aside the

entry of default against the Defendant. R&R at 1. By copy of the
R&R,

the parties were advised of

objections

to

the

Magistrate Judge.

findings

their right

and

recommendations

Id. at 6. On December 29,

filed an Objection to the R&R.

to

ECF No.

48.

2016,

file

written

made

by

the

the Plaintiff

On January 11,

2017,

the Defendant filed a Response to the Plaintiff's Objection. ECF
No.

49.
I.

Pursuant

Procedure,

entirety,
of

the

to

the

Rule

LEGAL STANDARD

72 (b)

court,

of

having

the

Federal

reviewed

the

Rules

of

record

Civil

in

its

shall make a de novo determination of those portions

R&R

to

which

the

Fed. R. Civ. P. 72(b).

Plaintiff

has

specifically objected.

The court may accept, reject, or modify,

in whole or in part, the recommendation of the magistrate judge,
or

recommit

the

matter

to

him

with

instructions.

28

U.S.C.

§ 636(b)(1).
II.

DISCUSSION

The Plaintiff objects to the Magistrate Judge's application
of

the

six-factor

articulated

Universal,

in

Colleton

Inc. ,

Specifically,

test

616

the

acted

with

setting

Preparatory

F.3d 413,

Plaintiff

erred in applying the
has

for

417

reasonable

Acad.,

(4th Cir.

argues

following

aside

that

factors;

the

default
Inc.

2010).

judgment

v.

Hoover

Obj .

at 1.

Magistrate

Judge

whether the Defendant

promptness,

the

personal

responsibility of the Defendant,

prejudice to the Plaintiff,

and

whether there is a history of dilatory actions. Id.
The Magistrate Judge's overall application of the Colleton
factors,
entry

that

and his recommendation to deny the Motion and set aside

of

default,

the

at 2-3,

is

Defendant
in

correct.

has

contrast

Although

engaged

with

the

in

the

Plaintiff

dilatory

Magistrate

action,

Judge's

objects

see

Obj.

finding

that

"there is no history of dilatory action in this case," R&R at 5,

the

court

conduct,

is

not

persuaded

that

"[the

Defendant's]

and the resulting prejudice to Liberty,

dilatory

weigh heavily

against setting aside default." Obj. at 3. A history of dilatory
conduct

is

but

one

of

motion for default
overall
F.3d

for

factors

judgment,

resolving

at 417.

six

consider

and there

cases

Moreover,

to

on

while

the
the

is a

merits.

in analyzing a

strong preference
See

Defendant

Colleton,

has

caused

616
some

delay,

the delay has neither been severe nor the result of bad

faith.

Such delay,

therefore,

setting aside default,"

Obj.

would not

at 3,

"weigh heavily against

but would be negligible in

the overall calculation of the Colleton factors.

The court also agrees with the Magistrate Judge
Defendant

delay,
Judge's

has

see

not

R&R

findings

caused

at
on

5,

the

and

the

Plaintiff

likewise

factors

of

prejudice

stands

by

reasonable

that

through

the

the
such

Magistrate

promptness

and

personal responsibility,
See id.

which have been given adequate weight.

a t 4.

For

these

reasons,

and

especially

preference for resolution on the merits,

at 417,

the

court

agrees

with

in

the

616 F.3d

the Magistrate Judge's

findings

the Colleton factors weigh in favor of

that

the

default

of

see Colleton,

that

Plaintiff's

light

Motion should be

the Defendant,

denied

and

the

and

entry of

s e t aside.
III.

The court,

CONCLUSION

having examined the Objections to the R&R filed

by the Plaintiff, and having made ^
thereto,

does

hereby

ADOPT AND APPROVE,

OVERRULE

novo findings with respect

the

Plaintiff's

Objections;

with the exception of the Magistrate Judge's

finding of no dilatory conduct, the findings and recommendations
set

forth

filed

on

Motion

in

the

R&R

of

the

December 15, 2016,

filed

on

October

13,

United

ECF

States

No.

2016,

47;

ECF

Magistrate

DENY

No.

the

35;

and

Judge,

Plaintiff's
DIRECT

the

Clerk to set aside the entry of default against the Defendant.
The

Clerk

is

DIRECTED

to

send a

copy of

this

Order to all parties.

IT IS SO ORDERED.

/s/
Rebecca Beach Smith
Chief Judge
REBECCA BEACH SMITH

January | ^ , 2017

CHIEF JtJDGE

Memorandum