Branch Banking and Trust Company v. TLS, INC. WV et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Judge Aloi's 40 Report and Recommendation is hereby ADOPTED and Plaintiff's 32 Motion for Default Judgment is hereby GRANTED. The Clerk is DIRECTED to enter a separate judgement order. Signed by District Judge Irene M. Keeley on 4/13/16. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRANCH BANKING AND TRUST COMPANY,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV147
(Judge Keeley)

TLS, INC. WV, a West Virginia
corporation, JEFFREY TAUBER,
individually, BRIANA A. WIESEN,
individually, and BITS, LLC., a
West Virginia limited liability company
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 40] AND
GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT [DKT. NO. 32]
On February 10, 2016, the plaintiff, Branch Banking and Trust
Company (“BB&T”), filed a motion for default judgment pursuant to
Fed. R. Civ. P. 37(b)(2), citing the defendants’ ongoing refusal to
participate in discovery (dkt. no. 32). Notably, the defendants
never responded to BB&T’s motion. The Court referred this matter to
United

States

Magistrate

Judge

Michael

J.

Aloi

for

initial

screening and a Report and Recommendation (“R&R”) in accordance 28
U.S.C. §§ 636(b)(1)(A) and 636 (b)(1)(B) and L.R. Civ. P.7.02(c).
On March 24, 2016, Magistrate Judge Aloi issued his R&R (dkt.
no. 40), in which he recommended that the Court grant BB&T’s motion
and enter a default judgment against the defendants pursuant to
Fed. R. Civ. P. Rule 37(b)(2). He cited the defendants’ bad faith
in refusing to participate in discovery, the prejudicial effect
that their refusal has had on the plaintiff’s ability to present
its case, and the deterring effect that an entry of default

BB&T V. TLS, INC., ET AL.

1:15CV147

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 40] AND
GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT [DKT. NO. 32]
judgment has on such behavior. Additionally, Magistrate Judge Aloi
noted

that

any

less

drastic

sanctions

available

under

Rule

37(b)(2)(A)(i) would not be effective in this case.
The R&R also specifically warned the defendants that their
failure to object to the recommendation would result in the waiver
of any appellate rights they might otherwise have on this issue.
Id.

The parties did not file any objections.1 Consequently,

finding

no

clear

error,

the

Court

ADOPTS

the

Report

and

Recommendation in its entirety (dkt. no. 40), and GRANTS BB&T’s
motion for default judgment (dkt. no. 32).
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this orders to counsel of record.
Dated: April 13, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

1

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells
v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).
2