United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge.
REPORT AND RECOMMENDATION  THAT AN
ENTRY OF DEFAULT ISSUE AGAINST DEFENDANT KRIEGER BEARD
Michael J. Newman, United States Magistrate Judge.
civil case is before the Court with regard to Defendant
Krieger Beard Services, LLC and its failure to appear and
defend this action. The Court has notified Defendant Krieger
Beard Services, LLC (“KBS”) on a number of
occasions that, as a business entity, it cannot participate
in and defend this case without counsel, and has ordered KBS
to have counsel enter an appearance on its behalf. Docs. 113,
114, 116. In that regard, KBS was notified that failure to
comply with the Court's Order to have counsel enter an
appearance on its behalf could result in the imposition of
sanctions, including the entry of default. Doc. 113 at PageID
3010. Counsel did not, however, enter an appearance on behalf
of KBS as ordered. Accordingly, on July 8, 2019, the Court
ordered KBS to show cause as to why such sanctions should not
issue. Doc. 114 at PageID 3012. KBS failed to show cause as
ordered, and the time for doing so has expired.
Court also previously ordered KBS, through counsel, to
respond to all outstanding discovery requests directed to it
and to file, through counsel, a notice with the Court
certifying that such responses have been served. Doc. 116.
KBS failed to file a notice with the Court certifying that it
responded to outstanding discovery requests, and the time for
doing so has expired.
on September 4, 2019, Defendant KBS failed to appear, through
counsel, and participate in a discovery status conference set
by the Court. Such conference was set on the Court's
docket over a year ago, on August 24, 2018.
courts possess “inherent power” to effectuate and
protect “the due and orderly administration of
justice[, ]” as well as to preserve “the
authority and dignity of the court[.]” Bowles v.
City of Cleveland, 129 Fed.Appx. 239, 241 (6th Cir.
2005) (internal quotations omitted) (quoting Cooke v.
United States, 267 U.S. 517, 539 (1925)). In addition to
such inherent power, the Federal Rules of Civil procedure
give district courts the power to, sua sponte,
“issue any just orders” imposing sanctions where
a party “fails to obey a . . . pretrial order[,
]” including “rendering a default judgment
against the disobedient party[.]” Fed.R.Civ.P. 16(f),
37(b)(2)(A)(vi). The Civil Rules also permit sanctions as
severe as the entry of a default judgment where a party fails
to comply with a discovery order. Bank One of Cleveland,
N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990)
(citing Fed.R.Civ.P. 37).
on the foregoing, the undersigned concludes that KBS has
failed to otherwise defend this action and that an entry of
default against KBS is proper at this time. Accordingly, the
undersigned RECOMMENDS that the Court direct
the Clerk to enter Krieger Beard Services, LLC's default
on the record.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within FOURTEEN days after
being served with this Report and Recommendation. This period
is not extended by virtue of Fed.R.Civ.P. 6(d) if served on
you by electronic means, such as via the Court's CM/ECF
filing system. If, however, this Report and Recommendation
was served upon you by mail, this deadline is extended to
SEVENTEEN DAYS by application of
Fed.R.Civ.P. 6(d). Parties may seek an extension of the
deadline to file objections by filing a motion for extension,
which the Court may grant upon a showing of good cause.
objections filed shall specify the portions of the Report and
Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report
and Recommendation is based, in whole or in part, upon
matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs.
may respond to another party's objections within
FOURTEEN days after being served with a copy
thereof. As noted above, this period is not extended by
virtue of Fed.R.Civ.P. 6(d) if served on you by electronic
means, such as via the Court's CM/ECF filing system. If,
however, this Report and Recommendation was served upon you
by mail, this deadline is extended to SEVENTEEN
DAYS by application of Fed.R.Civ.P. 6(d).
to make objections in accordance with this procedure may
forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140, 153-55 (1985); United States v. Walters,
638 F.2d 947, 949-50 (6th Cir. 1981).