Opinion
Case No. 2:99-1-cv-FTM-29DNF
March 30, 2001
ORDER
This cause is before the Court on Motion by Plaintiff United States for Entry of Judgment by Default Against Defendants Lawrence G. Franklin and Patricia K. Franklin (defendants or Franklins) as a Sanction for Failure to Participate in Pretrial Proceedings (Doc. #222), filed January 30, 2001; and Plaintiff's Oral Motion for Default Judgment (Doc. #233), made in open court on February 9, 2001. For the following reasons, the Court concludes that an entry of a default is warranted in this case.
Plaintiff requests, pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), that a default judgment be entered against the Franklins for their failure to participate in pretrial proceedings (Doc. #222) and for their failure to attend the scheduled pretrial conference (Doc. #233). Given Lawrence G. Franklin's and Patricia K. Franklin's history of non-compliance with this Court's Orders, the oral motion is due to be granted.
On August 19, 1999, this Court entered an Order (Doc. #34), upon review of cross-motions for sanctions, directing the Franklins to confer on the case management conference by a specific date. Thereafter, plaintiff filed a Notice of Refusal by Defendants to Execute Case Management Report (Doc. #42). Defendants also filed excessive motions on every perceived issue, many frivolous. On September 1, 2000, this Court accepted the Report and Recommendations (Doc. #147) of the United States Magistrate Judge, precluding defendants from filing additional motions to dismiss and ordering defendants to file an Answer. (Doc. #178). Defendants, in direct violation of the Order, filed a motion to dismiss under the guise of the title "Petition for Dismissal" on December 26, 2000. (Doc. #214). This Court denied the motion to dismiss on February 8, 2001, for the violation of the previous Order. (Doc. #232). On January 30, 2001, Plaintiff represented to the Court that defendants were unwilling to participate in pretrial proceedings, or to file a joint pretrial stipulation. (Docs. #219, 220, 222). On February 9, 2001, defendants failed to appear at a scheduled pretrial conference. (Doc. #233). More recently, defendants have filed various notices referring to the Uniform Commercial Code (UCC), with interrogatories to the court personal, which the Court has stricken and returned.
U.S. District Court, Middle District of Florida, Local Rule 3.06 requires parties to meet before a pretrial conference takes place and to file a joint pretrial statement no later than three (3) days before the final pretrial conference. Fed.R.Civ.P. 26(a)(3) also required pretrial disclosures not undertaken by defendants.
Federal Rule of Civil Procedure 16(f) allows the Court to impose sanctions under Fed.R.Civ.P. 37(b)(2)(C) if a party fails to obey a pretrial order, or fails to appear at a scheduled pretrial conference. Federal Rule of Civil Procedure 37(b)(2)(C) states, "[i]f a party . . . fails to obey an order . . . the court in which the action is pending may make . . . [a]n order striking out pleadings or parts thereof, or . . . dismissing the action or . . . or rendering a judgment by default against the disobedient party."
Fed.R.Civ.P. 16(f) provides for sanctions if "a party . . . fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, . . . the judge, upon motion or the judge's own initiative, may make such orders . . . as are just, . . . [or as] . . . in Rule 37(b)(2)(B), (C), (D)."
The Court has broad discretion in imposing sanctions. BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1048 (11th Cir. 1994);Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993) ,cert. denied, 510 U.S. 863; Hashemi v. Campaigner Publ'ns, Inc., 737 F.2d 1538, 1539 (11th Cir. 1984); Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987). Nonetheless, this discretion is not unbridled.Wouters v. Martin County, Fla., 9 F.3d 924, 933 (11th Cir. 1993). The decision to enter a default judgment is a last resort, "ordered only if noncompliance with discovery orders is due to willful or bad faith disregard for those orders." U.S. v. Certain Real Pro. Located at Route 1, Bryant, Ala., 126 F.3d 1314 (11th Cir. 1997); citing Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir. 1986). "Simple negligence, misunderstanding or inability to comply will not justify a Rule 37 default." Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1371 (11th Cir. 1997) (internal quotations and citations omitted)
A review of the file indicates that defendants have shown a willful disregard for this Court's Orders, and have acted in bad faith. Therefore, nothing less than a default judgment is warranted. Malautea v. Suzuski Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993), cert. denied, 510 U.S. 863. See also Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir. 1988)
Accordingly, it is now
ORDERED:
1. Motion by Plaintiff United States for Entry of Judgment by Default Against Defendants Lawrence G. Franklin and Patricia K. Franklin (defendants) as a Sanction for Failure to Participate in Pretrial Proceedings (Doc. #222) is GRANTED to the extent that defendants pleadings and responses to the Summary Judgment Motion (Doc. #119) are stricken. The Clerk of the Court shall enter a Default as to each defendant, Lawrence C. Franklin and Patricia K. Franklin.
2. Plaintiff's Oral Motion for Default Judgment (Doc. #233) is GRANTED to the same extent as set forth above, in Paragraph #1.
3. The Court shall conduct an evidentiary hearing as to the amount of Judgment at the United States Courthouse, Courtroom A, Room 6-130, 2110 First Street, Fort Myers, Florida, at 10:00 AM, on April 19, 2001. All pending motions are moot.
4. Defendants Lawrence G. Franklin and Patricia K. Franklin are both required to be present at the hearing.