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Block v. Wing, Grill & Beer Masters, Inc.

United States District Court, M.D. Florida, Ocala Division

November 9, 2017

JAMIE BLOCK and RANDI REZUTKA, Plaintiffs,
v.
WING, GRILL & BEER MASTERS, INC. and CARA TUMINELLO Defendants.

          REPORT AND RECOMMENDATION [1]

          PHILIP R. LAMMENS UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs' motion requesting an order finding that property in the hands of or under the control of the Impleader Defendants be applied to satisfy the outstanding final default judgment and that a judgment also be entered against the Impleader Defendants. (Doc. 33). No. response has been filed in opposition. For the reasons discussed below, Plaintiffs' motion should be GRANTED.

         I. Background

         On August 15, 2016, the Court entered default judgment in favor of Plaintiffs Jamie Block and Randi Rezutka against Defendants Wing, Grill & Beer Masters, Inc. and Cara Tuminello in the amount of $33, 663.00. (Doc. 19). The judgment remains uncollected.

         Plaintiffs, as the judgment creditors, moved for leave to institute supplementary proceedings in aid of execution by impleading Nomdeplume, Inc. d/b/a WGB's Sports Craft Bar & Grill (“Nomdeplume”) and Brianna Shafer (the “Impleader Defendants”). (Doc. 20). Plaintiffs claimed that the Impleader Defendants have possession of property belonging to the judgment debtors (Wing, Grill & Beer Masters, Inc. and Cara Tuminello) and Plaintiffs seek to use that property to pay the outstanding judgment. Specifically, Plaintiffs identified the following property:

(a) Leasehold interest in property located at 715 Southeast Highway 19, Crystal River, FL 34429;
(b) Retail Alcoholic Beverages License Number BEV 1909994; and
(c) All other personal property of Wing, Grill & Beer Masters, Inc., including but not limited to bar and restaurant equipment, furniture, receivables, accounts, inventory, and tangible and intangible property located at 715 Southeast Highway 19, Crystal River, FL 34429.

         Plaintiffs offered evidence showing that on May 3, 2016-after the underlying Complaint was filed in this action and after Plaintiffs moved for a default against Defendants, Brianna Shafer (Cara Tuminello's daughter) filed Articles of Incorporation with the Florida Department of State in order to form Nomdeplume. (Doc. 20-3). On May 24, 2016, the judgment debtor, Wing, Grill & Beer Masters, Inc., assigned its lease of property located at 715 Southeast Highway 19, Crystal River, FL 34429 to Nomdeplume. (Doc. 20-4). On or about May 26, 2016, Brianna Shafer registered the fictitious name-WGB's Sports Craft Bar & Grill-with the Florida Department of State for Nomdeplume. (Doc. 20-7). On May 26, 2016, Wing, Grill & Beer Masters, Inc. filed an “Application for Transfer of Ownership of an Alcoholic Beverage License” with the Florida Department of Alcoholic Beverages and Tobacco to transfer its Retail Alcoholic Beverages License Number BEV 1909994 to Nomdeplume. (Doc. 20-5). The application was approved and the license was transferred. (Doc. 20-6). Plaintiffs further asserted that on or about May 26, 2016, Wing, Grill & Beer Masters, Inc. and Cara Tuminello transferred all other property of Wing, Grill & Beer Masters, Inc., to the Impleader Defendants, including but not limited to bar and restaurant equipment, furniture, account receivables, accounts, inventory, and tangible and intangible property.

         The Court granted Plaintiffs' motion and directed the issuance and service of process upon Nomdeplume and Brianna Shafer. (Doc. 22). Accordingly, on May 23, 2017, summons were issued directed to Nomdeplume (Doc.23) and Brianna Shafer (Doc. 24). On June 15, 2017, Plaintiffs filed proof of service showing that service was made on Nomdeplume's registered agent on May 30, 2017. (Doc. 25). On June 23, 2017, Plaintiffs filed proof of service showing that personal service was made on Brianna Shafer on June 2, 2017. (Doc. 27).

         On June 22, 2017, Brianna Shafer appeared and filed a motion requesting an extension of time to retain counsel. (Doc. 26). Despite being granted an extension until July 28, 2017, and being advised that Nomdeplume could only appear through counsel, no counsel has filed a notice of appearance and Ms. Shafer has not requested additional time.

         On August 11, 2017, the Court issued Notices to Appear as required by Fla. Stat. § 56.29(2). The Notices directed the Impleader Defendants to file an affidavit within 21 days from the date of service stating why the above property should not be applied to satisfy the judgment. They further advised that “[i]f you fail to file the affidavit on or before the date above, a default may be entered against you and the Court may order the property, debt or other obligation to be used to pay towards or satisfy the judgment.” Despite being served with the Notices in mid-August (Docs. 31 and 32), neither Nomdeplume nor Brianna Shafer have filed an affidavit, or any paper for that matter stating why the property listed in the Notices to Appear should not be applied toward the debt. Accordingly, the Impleader Defendants are in default status.

         Now, Plaintiffs have filed the instant motion seeking an order that the property of the judgment debtors in the hands of or under the control of the Impleader Defendants be applied to satisfy the judgment entered in this case and that a judgment be entered against the Impleader Defendants. (Doc. 33). The Impleader Defendants have not filed any response and their time to do so has passed.

         II. ...


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