Opinion
CASE NO. 2:08cv-573-MEF.
October 5, 2009
MEMORANDUM OPINION AND ORDER
On July 17, 2008, the United States of America ("Plaintiff") brought suit (Doc. #1) against eleven defendants pursuant to Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. §§ 3601- 3619 ("Fair Housing Act"). Plaintiff filed an Amended Complaint (Doc. #45) on January 7, 2009, with additional claims pursuant to the Fair Housing Act against the ten remaining of the original defendants and three additional defendants. Plaintiff alleges that defendant Jamarlo Gumbaytay ("Gumbaytay") engaged in a pattern of unlawful discrimination on the basis of sex in connection with the rental of the other defendants' properties. This cause is before the Court on Plaintiff's Application for Entry of Default (Doc. #75), which the Court construes as a Motion for Entry of Default Judgment, filed on June 26, 2009.
I. PROCEDURAL HISTORY
A. Original Complaint
On July 17, 2008, Plaintiff brought suit against eleven defendants pursuant to the Fair Housing Act. The original eleven defendants include the Estate of Donna Greene ("Greene"), Lori Williams ("Williams"), Sean McDonough ("McDonough"), Woody D. Franklin and Woody D. Franklin, Sr. (collectively "the Franklins"), James F. Clark and Barbara Clark (collectively "the Clarks"), Gumbaytay, Matthew Bahr ("Bahr"), and Brett Rosenbaum ("Rosenbaum"). Gumbaytay, Bahr, the Franklins, the Clarks, and Williams filed answers to Plaintiff's Original Complaint. See Docs. #6-7, 16, 19, 39. Bahr and Williams are pro se litigants.
B. Amended Complaint
Plaintiff filed an Amended Complaint (Doc. #45) on January 7, 2009, with additional claims pursuant to the Fair Housing Act against the original defendants and three additional defendants. The additional defendants include Millennia Properties, LLC ("Millennia"), Abraham Campbell ("Campbell"), and Guest Property Sales, LLC ("Guest Property"). Millennia and Campbell answered the Amended Complaint. See Docs. #51-52. Williams, the Franklins, and the Clarks also filed answers to the Amended Complaint. See Docs. #80-81, 94. On April 10, 2009, the Clerk of the Court filed an Entry of Default as to defendants McDonough and Rosenbaum (Doc. #64). On June 26, 2009, the Clerk of the Court filed an Entry of Default as to defendant Guest Property (Doc. #74).
C. Plaintiff's Motion For Entry of Default As To Seven Defendants
On June 26, 2009, Plaintiff filed a Motion for Entry of Default as to Seven Defendants (Doc. #75). In its motion, Plaintiff seeks default judgment against Gumbaytay, Bahr, Williams, the Franklins, and the Clarks. The Franklins, Clarks, and Gumbaytay filed Responses in Opposition to Plaintiff's Motion (Docs. # 78-79, 92).
II. DISCUSSION
Rule 55(a) of the Federal Rules of Civil Procedure states that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules . . . the clerk shall enter the party's default." Fed.R.Civ.P. 55(a). Once this has occurred, "the party entitled to a judgment by default shall apply to the court therefor." Fed.R.Civ.P. 55(b)(2). However, the law in this Circuit is clear that "there is a strong policy of determining cases on their merits and we therefore view defaults with disfavor." In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003); Fla. Physician's Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993) (stating that "defaults are seen with disfavor because of the strong policy of determining cases on their merits"). In addition, courts have generally required some notice to be given to a defendant between the time of service of process and entry of default judgment. See, e.g., Atl. Recording Corp. v. Carter, 508 F. Supp. 2d 1019, 1022 n. 1 (S.D. Ala. 2007) (collecting cases); F.T.C. v. 1263523 Ontario, Inc., 205 F. Supp. 2d 205, 208 (S.D.N.Y. 2002) (entering default judgment where defendants had failed to respond in any way to summons, complaint and motion for default judgment).
Plaintiff seeks entry of default judgment against seven of the named defendants in this case. However, all of these defendants have filed answers to the Amended Complaint except Gumbaytay and pro se litigant Bahr. Because the defendants have filed an answer to either Plaintiff's original complaint or amended complaint, Plaintiff's Motion for Entry of Default as to Seven Defendants is due to be denied.
III. CONCLUSION
For the reasons set forth above, Plaintiff's Motion (Doc. #75) is DENIED.
To ensure that Bahr has proper notice of these proceedings, the Clerk of the Court is
DIRECTED to mail a copy of this Order, Plaintiff's Amended Complaint (Doc. #45), and Plaintiff's Motion for Entry of Default as to Seven Defendants (Doc. #75) to Matthew Bahr by both regular mail and by certified mail, return receipt requested. It is also
ORDERED that Jamarlo Gumbaytay and Matthew Bahr file an answer to Plaintiff's Amended Complaint no later than October 19, 2009. Mr. Bahr is also hereby advised that failure to participate in proceedings may result in the imposition of sanctions.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).