Opinion
Case No. 2:07-cv-334-FtM-34SPC.
April 16, 2008
ORDER
This is a "written opinion" under § 205(a)(5) of the E-Government Act and therefore is available electronically. However, it has been entered only to decide the motions addressed herein and is not intended for official publication or to serve as precedent.
THIS CAUSE is before the Court on Magistrate Judge Sheri Polster Chappell's Report and Recommendation (Dkt. No. 20; Report), entered March 7, 2008, recommending that Plaintiff's Motion for Default (Dkt. No. 16) be granted. To date, no objections to the Report have been filed, and the time for doing so has passed.
The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). "When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Rule 72(b) advisory committee's note (1983); see also Macort v. Prem, Inc., 208 Fed. Appx. 781, 784-85 (11th Cir. 2006) (per curiam). Therefore, if no specific objections to findings of facts are filed, the district court is not required to conduct a de novo review of those findings, but will review the legal conclusions in the report de novo to determine whether there is any clear error. See Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993); Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at * 1 (M.D. Fla. May 14, 2007); see also 28 U.S.C. § 636(b)(1).
Rule 55(a), Federal Rules of Civil Procedure (Rule(s)), provides for the entry of a default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." An order for entry of default is within the discretion of the Court. Marschhauser v. Travelers Indemnity Co., 145 F.R.D. 605, 610 (S.D. Fla. 1992). Once default has been entered, the plaintiff may move for default judgment pursuant to Rule 55(b). See, e.g., Heaton v. Bonacker Leigh, 173 F.R.D. 533, 534-35 (M.D. Ala. 1997).
While Rule 55(a) provides for entry of a clerk's default, a plaintiff must first effect service of the summons and the complaint properly on the defendant within 120 days of the filing of the action as required by Rule 4(m). See Maryland State Firemen's Ass'n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996) (finding that "service of process must be effective under the Federal Rules of Civil Procedure before a default . . . may be entered against a defendant.") (citations omitted). Upon review of the Court record, it appears that this action was initiated by Plaintiff on May 23, 2007. See Class Action Complaint (Dkt. No. 1). Plaintiff amended the Complaint to name Clifford Fort Myers, LLC, as a defendant on June 19, 2007. See Amended Class Action Complaint (Dkt. No. 10). Thereafter, Plaintiff effected service of process on Defendant on June 29, 2007, by serving Kim Glover, an "Authorized Agent/Employee Authorized to accept service for Corporation Service Company as Registered Agent for" Defendant. Return of Service (Dkt. No. 11) at 1. The record further reflects that Defendant has failed to plead or otherwise defend this action. Accordingly, it appears that Defendant is indeed in default pursuant to Rule 55(a).
In light of the foregoing and based upon an independent examination of the record, the Court will accept the recommendation of the Magistrate Judge.
The Report also contains discussion of the entry of a default judgment. However, Plaintiff did not seek entry of a default judgment, nor did the Magistrate Judge recommend entry of a default judgment. Accordingly, the Court need not address that issue. Plaintiff is free to move for default judgment in accordance with Rule 55(b) and the Local Rules of this Court.
Accordingly, it is hereby ORDERED:
1. Magistrate Judge Sheri Polster Chappell's Report and Recommendation (Dkt. No. 20) is ACCEPTED.
2. Plaintiff's Motion for Default (Dkt. No. 16) is GRANTED.
3. The Clerk of the Court is directed to enter a default as to Defendant Clifford Fort Myers, LLC.DONE AND ORDERED at Fort Myers, Florida.