Opinion
Civil Action 1:19-CV-202
05-04-2022
NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff, v. MATRICULATED SERVICES, LLC, Defendant/Third-Party Plaintiff, v. ADRIAN HOLDING, LLC, Defendant/Third-Party Defendant/Counter Claimant, and FTS INTERNATIONAL SERVICES, LLC, Third-Party Defendant/Counter- Claimant.
REPORT AND RECOMMENDATION RECOMMENDING THAT FTS INTERNATIONAL SERVICES, LLC'S MOTION TO STRIKE AND MOTION FOR DEFAULT [ECF NO. 105] BE GRANTED
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE.
This matter is before the undersigned Magistrate Judge pursuant to a referral order [ECF No. 107] entered by the Honorable Irene M. Keeley, Senior United States District Judge, on April 11, 2022. Pending before the Court is Third-Party Defendant FTS International Services, LLC's (“FTSI”) motion [ECF No. 105] and memorandum in support, thereof [ECF No. 106], filed on April 6, 2022, to strike Defendant Matriculated Services, LLC's (“Matriculated”) Third-Party Complaint and Answer to the Counterclaim of FTSI and for entry of default against Matriculated. By Order to Show Cause entered on April 11, 2022 [ECF No. 108], the undersigned ordered Matriculated to show cause, within fourteen (14) days of its receipt of the Order to Show Cause, why FTSI's pending motion should not be granted. Matriculated received the Order on April 15, 2022. [ECF No. 112]. Thus, Matriculated's deadline to show cause lapsed on April 29, 2022. Matriculated has filed nothing with the Court to show cause.
It is presently indicated on the online platform of the United States Postal Service for tracking the transmission and delivery of parcels that, as to delivery of the undersigned's Order to Show Cause [ECF No. 108], “Notice Left (No Authorized Recipient Available).” However, per Clerk's Office staff, as indicated on the docket [ECF No. 112], on April 26, 2022, it was stated on this same platform that “Delivery Attempted/SERVICE ACCEPTED” and that delivery was successful on April 15, 2022. Delivery appears to have been successful in that the return receipt bears the signature of a recipient. Moreover, this signature appears to be the same as that contained on a return receipt for delivery of an earlier Report and Recommendation. [See ECF No. 109]. The undersigned cannot explain this discrepancy on the United States Postal Service platform, and assumes, based on the signature contained on the return receipt [ECF No. 112] and the information earlier seen by Clerk's Office staff, that delivery of the Order to Show Cause [ECF No. 108] was successful.
As noted in the Order to Show Cause [ECF No. 108], Matriculated had counsel earlier in these proceedings who tragically passed in an automobile accident. Judge Keeley stayed proceedings and subsequently entered an Order [ECF No. 67] clearly directing that new counsel for Matriculated file a notice of appearance by December 31, 2021. No new counsel filed such a notice of appearance by that deadline or since then. It is indicated in the record that Matriculated is not retaining new counsel. [See ECF No. 82-1 at 2].
Under the Federal Rules of Civil Procedure, when a party such as Matriculated here fails to defend as directed and required, the party seeking default against such party may file a motion for such relief, whereupon the Court may conduct proceedings to determine damages at issue. See Fed. R. Civ. P. 55(b)(2)(B); see generally U.S. v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). Here, Matriculated has been given every opportunity to appear and defend against the claims lodged against it. In fact, Judge Keeley stayed proceedings for a period of months, affording Matriculated more than ample time to retain new counsel [ECF Nos. 64, 67]. By the undersigned's Order to Show Cause [ECF No. 108], Matriculated has been informed in writing, unequivocally, that failure to file a responsive pleading may well result in default entered against it, which ultimately may result in a finding of damages. Nonetheless, despite receiving notice and having opportunity to respond, Matriculated has failed to retain counsel who have appeared, and thus has failed to respond as directed.
Thus, based on the foregoing, the undersigned RECOMMENDS that FTSI's pending motion [ECF No. 105] for default and to strike Matriculated's Third-Party Complaint and Answer to the Counterclaim be GRANTED.
The undersigned distinguishes between entry of default here at this stage of the matter, and the potential for an ultimate entry of judgment against a party.
Any party have fourteen (14) days (filing of objections) and then three days (mailing/service) from the date of the filing of this Report and Recommendation to file with the Clerk of the Court specific written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Irene M. Keeley, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk of the Court is DIRECTED to provide a copy of this Order to all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia, as well as to Matriculated Services, LLC c/o Registered Agent David M. Sutherland, 201 River Run, Queenstown, Maryland 21658 by certified mail, return receipt requested.