Siemens Industry, Inc. et al v. The Hanover Insurance Company et al

Filing 20

ORDER Granting 14 Motion for Default Judgment; Adopting Report and Recommendations re 19 Report and Recommendations. The Court hereby ADOPTS the findings and recommendations set forth in the Report and Recommendation of the United States Magistrate Judge filed on November 18, 2015, and Plaintiff Siemens Industry, Inc. 's Motion for Default Judgment against Defendant Tidal Mechanical, Inc., ECF No. 14, is GRANTED, and this case is DISMISSED. The Clerk shall enter judgment in favor of Siemens Industry, Inc. against Tidal Mechanical, Inc. in the amount of $39,985.00. Signed by District Judge Mark S. Davis and filed on 12/11/15. Copies distributed to all parties 12/11/15. (ldab, )

UNITED
FOR THE

STATES

DISTRICT

COURT

EASTERN DISTRICT OF VIRGINIA

Newport News Division

UNITED

USE AND

STATES

OF AMERICA

BENEFIT OF

INDUSTRY,

INC.,

FOR THE

SIEMENS

AND SIEMENS

INDUSTRY, INC.,

a Delaware corporation,
Plaintiffs,
ACTION NO.

4:15cvl8

THE HANOVER INSURANCE COMPANY,

THR ENTERPRISES,

INC.,

TIDAL MECHANICAL,

and

INC.,

Defendants.

FINAL

ORDER

This matter is before the Court on Plaintiff Siemens Industry,

Inc.'s

("Siemens")

Tidal Mechanical,

Motion for Default Judgment against Defendant
Inc.

On March 3, 2015,

("Tidal").

ECF No.

14.

Siemens obtained service of process of the

Complaint through statutory agent for Tidal,
Virginia Code § 12.1-19.1.

ECF No.

8.

in accordance with

Tidal's response to the

Complaint was due March 30, 2015, however, it failed to respond or

otherwise appear in this action.

As a result,

Siemens requested

entry of Default, ECF No. 11, and on May 7, 2015, the Clerk of this
Court entered default against Tidal.

ECF No.

12.

Subsequent to

default being entered, the remaining parties waived their right to

1

proceed before a United States district judge and consented to have
a

United

States

magistrate

judge

conduct

any

and

all

further

proceedings in the case, including trial and entry of final judgment.
Tidal did not join in the consent.
On June 25,

2015,

this matter was referred to United States

Magistrate Judge Douglas E. Miller, pursuant to the provisions of
28 U.S.C.

16.

§ 636(c) and Federal Rule of Civil Procedure 73.

ECF No.

However, because Tidal had not appeared in the case and had not

consented to the jurisdiction of the Magistrate Judge, the Magistrate
Judge lacked jurisdiction to enter default judgment against Tidal.
Therefore, on November 18, 2015, Magistrate Judge Douglas E. Miller

issued a Report and Recommendation, ECF No. 19, recommending that
the Court grant Plaintiff's Motion for Default Judgment and enter
judgment in favor of Siemens Industry, Inc. against Tidal Mechanical,
Inc.

in the amount of $39,985.00.

By copy of the Report and

Recommendation, each party was advised of the right to file written

objections to the findings and recommendations made by the Magistrate
Judge.

The Court has received no objections to the Magistrate

Judge's Report and Recommendation, and the time for filing same has
expired.

The Court hereby ADOPTS the findings and recommendations set
forth

in

the

Report

and

Recommendation

of

the

United

States

Magistrate Judge filed on November 18, 2015, and Plaintiff Siemens

Industry, Inc. 's Motion for Default Judgment against Defendant Tidal

Mechanical, Inc., ECF No. 14, is GRANTED, and this case is DISMISSED.1
The Clerk shall enter judgment in favor of Siemens Industry, Inc.
against Tidal Mechanical,

Inc. in the amount of $3 9,985.00.

Defendant Tidal Mechanical, Inc. is ADVISED that it may appeal

from this Final Order by forwarding a written notice of appeal to
the

Clerk

Courthouse,

of

the

600

United

Granby

States

Street,

District

Norfolk,

Court,

United

States

Virginia

23510.

Said

written notice must be received by the Clerk within thirty (30) days
from the date of this Final Order.2

The Clerk shall provide an electronic copy of this Final Order

to all counsel of record and shall also mail a copy of this Final Order

1The Court notes that on November 4, 2015, counsel for Plaintiff Siemen's

Industry, Inc. and counsel for Defendants The Hanover Insurance Company
and THR Enterprises, Inc. filed a Notice of Settlement of Case and

Stipulation of Dismissal.

Therefore, the only remaining party left in the

case is Defendant Tidal Mechanical, Inc.

In a civil case, a notice of appeal generally must be filed within thirty
days after entry of final judgment.

Fed. R. App. P. 4(a)(1).

However,

the time allowed to file a notice of appeal is extended to sixty days when
one of the parties is the United States or its officer or agency, id.
4(a)(1)(B). While the Miller Act requires a subcontractor to bring suit
"in the name of the United States," 40 U.S.C. § 3133(b) (3) (A) , the Eleventh

Circuit has found that the United States is a nominal party to a Miller
Act action and a thirty-day deadline to file a notice of appeal is
appropriate.

U.S. ex rel. Postel Erection Grp., L.L.C. v. Travelers Cas.

& Sur. Co. of Am., 711 F.3d 1274, 1276 (11th Cir. 2013) .

Thus, the Court

advises the parties that written notice of appeal should be received by
the Clerk within thirty days from the date of this Final Order.

to

Tidal

Mechanical,

Inc.

at

804

Industrial

Avenue,

Suite

A,

Chesapeake, Virginia 23324 and at 601 Pine Lake Drive, Virginia Beach,
Virginia 23462.

/s7Wk&Mark

S.

Davis

United States District Judge
Norfolk, Virginia
December

I

, 2015