Opinion
Case No. CV412-233
04-28-2015
SAGE BROWN, and PATRICIA M. BROWN Plaintiffs, v. True & Associates, Ltd.; True Designs; True Designs, Inc.; True Innovations, Inc.; True North Innovations, Inc.; True North America; True North America, Inc. True Seating Concepts, Inc. True Seating Concepts, LLC; Tilton & Associates, Ltd. Defendants.
REPORT AND RECOMMENDATION
The Court dismissed the Sam's Club and Wal-Mart defendants from this defective-chair case on November 5, 2014. Doc. 76. Since then, there has been no litigation activity, despite the fact that the stay this Court granted (for plaintiff Sage Brown's health problems) expired on February 4, 2015. Doc. 75. And with one exception, none of remaining defendants has ever been served. So, the Court directed plaintiffs to show why the remainder of this case should not be dismissed without prejudice under Fed. R. Civ. P. 4(m) and 41(b). Doc. 77.
The Court's last Order erroneously implied that all of the remaining defendants remained unserved. Doc. 77 at 1.
In response, plaintiffs cite Sage Brown's new health problems, then remind the Court that they had served -- and the Clerk entered default against -- Tilton & Associates, Ltd. Doc. 78; see also doc. 59 (entry of default). They move for a hearing to determine default damages against Tilton, per Fed. R. Civ. P. 55(b)(2)(B). Id. at 4. Of course, nothing prevented plaintiffs from pursuing a default judgment against Tilton as early as January 14, 2014, doc. 59, the day the Clerk entered default. And since they evidently have (by their silence) abandoned their efforts to pursue the remaining named but un-served defendants, that part of their case should be dismissed. See Rule 41(b); LR 41.1(c) (authorizing sua sponte dismissal for "[a]ny other failure to prosecute a civil action with reasonable promptness").
Rule 55(b)(2) authorizes a district court to enter a default judgment against a properly served defendant who fails to file a timely responsive pleading. Rule 55(b)(2). Rule 55 deploys a two-step process:
First, when the defendant fails to plead or otherwise defend the lawsuit, the clerk of court is authorized to enter a clerk's default against the defendant. See Fed. R. Civ. P. 55(a). Second, and in general, after receiving the clerks default, the court, or in some instances the clerk, may enter a default judgment against the defendant for not appearing. See Fed. R. Civ. P. 55(b). A default judgment may be entered "against a defendant who never appears or answers a complaint, for in such circumstances the case never has been placed at issue." Solaroll Shade and Shutter Corp., Inc. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986).Kennedy v. National Asset & Risk Management, LLC, 2014 WL 1293528 at * 1 (M.D. Fla. Mar. 28, 2014).
See FDIC v. Spartan Mining Co., 96 F.R.D. 677, 679 (S.D.W.Va. 1983) (entry of and default judgment entered the same day), aff'd, 731 F.2d 1134 (4th Cir. 1984), cited in Patray v. Northwest Pub., Inc., 931 F. Supp. 865, 868 (S.D. Ga. 1996).
Accordingly, the Court should DISMISS WITHOUT PREJUDICE all but the Tilton & Associates, Ltd., defendant. The plaintiffs shall, within 21 days of the date this Report and Recommendation is served, file a fully supported motion for a default judgment pursuant to Rule 55. They are reminded of the liquidated and unliquidated damages distinctions relevant in this area, see, e.g., Patray, 931 F. Supp. at 869-70; Broadcast Music, Inc. et al v. GATA'S Statesboro, LLC, CV614-121, doc. 12 (S.D. Ga. Apr. 17, 2015) (example of a liquidated-damages based, default-judgment motion), as well as the double-recovery rule. See U.S. ex rel. Kirby Bldg. Systems, LLC v. Gator Steel Bldgs., Inc., 2014 WL 840985 at * 5 (S.D. Ga. Mar. 3, 2014). Finally, and for docket-clearing purposes only, plaintiffs' motion for a leave of absence, doc. 72, is DENIED as moot.
They should not file a "response to court order." See Fed. R. Civ. P. 7(b)(1) (a request for an order -- hence, judicial relief -- must be made by a motion). A "motion" also gets entered on this Court's "Pending Motions" list, while a "response" does not.
SO REPORTED AND RECOMMENDED this 28th day of April, 2015.
/s/_________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA