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United States v. Serneels

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

November 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT E. SERNEELS, Defendant.

          ORDER

          JAMES D. WHITTEMORE UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Report and Recommendation submitted by the Magistrate Judge recommending that Plaintiffs Motion for Contempt (Dkt. 31) be granted and giving Defendant thirty (30) days from the date of this Order to provide responses to the outstanding discovery in aid of execution to avoid sanctions by incarceration. Defendant was personally served with the Report and Recommendation on November 9, 2017 by the United States Marshals Service (Dkt. 34). Neither party has filed objections and the time for doing so has expired.

         A district court may accept, reject or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1). In the absence of specific objections, there is no requirement that factual findings be reviewed de novo, and the court may accept, reject or modify, in whole or in part, the findings and recommendations. § 636(b)(1)(C); Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). Legal conclusions are reviewed de novo, even in the absence of an objection. See LeCroy v. McNeil, 397 Fed.Appx.. 554, 556 (11th Cir. 2010) (citing United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982)); Cooper-Houston v. S. Ry Co., 37 F.3d 603, 604 (11th Cir. 1994).

         After conducting a careful and complete review of the findings, conclusions, and recommendations, and giving de novo review to matters of law, the Report and Recommendation (Dkt. 33, attached to this Order) is APPROVED and ADOPTED as amended herein.

         1) Plaintiffs Motion for Contempt (Dkt. 31) is GRANTED.

         2) Pursuant to Federal Rule of Civil Procedure 45(g), the Defendant is in civil contempt and is sanctioned as follows: Scott E. Serneels is sentenced to ten (10) days in the custody of the United States Marshal. He may purge his jail sanction by providing the outstanding discovery responses to Plaintiff by January 2, 2018, failing which a warrant for his arrest will be issued. If Defendant complies within the applicable time period, Plaintiff shall file a notice of compliance as expeditiously as possible.

         3) Within ten (10) days, Plaintiff shall serve a copy of this Order and the Interrogatories and Production in Aid of Execution on Scott E. Serneels in the manner by which process is served and file a notice of compliance.

         DONE AND ORDERED

         REPORT AND RECOMMENDATION

         Plaintiff initiated this action against Defendant seeking to recover outstanding student loan debts in an amount exceeding $6, 000 (Doc. 1). Plaintiff alleged that demand had been made upon Defendant for payment of the indebtedness, but Defendant neglected and refused to pay. Subsequently, Defendant failed to answer the Complaint or otherwise appear in this action. As a result, Plaintiff moved for entry of a clerk's default (Doc. 6), which the Clerk subsequently entered (Doc. 7). Following entry of the clerk's default, Plaintiff moved for entry of a default judgment (Doc. 8). Upon consideration, the Court entered judgment in favor of Plaintiff and against Defendant and closed the case (Doc. 9, 10).

         After entry of the judgment, Plaintiff sent discovery to Defendant to aid in execution of the judgment. According to Plaintiff, Defendant failed to respond to the interrogatories and requests for production in aid of execution. Accordingly, Plaintiff filed its amended motion to compel (Doc. 15), requesting that the Court compel Defendant to respond to the outstanding discovery in aid of execution and impose sanctions upon Defendant. After consideration, the Court issued an Order to Show Cause (Doc. 17), directing Plaintiff to serve a copy of the Order upon Defendant within 10 days and scheduling a show cause hearing, at which Defendant was directed to appear and show cause as to why sanctions should not be imposed against him for failure to respond to Plaintiff's discovery requests. In the Order, the Court informed Defendant that compliance with Plaintiff's requests for discovery prior to the hearing would lead to cancellation of the hearing and no sanctions would issue. In addition, the Court warned Defendant that, if he failed to appear at the hearing, the Court would issue sanctions, which could include issuance of a warrant for his arrest and commencement of the civil contempt process.

         The Court conducted an initial show cause hearing on March 24, 2017. During the initial hearing, Defendant failed to appear, but Plaintiff informed the Court that, although it served a copy of the Court's prior Order upon Defendant, it did not serve a copy of the Court's prior Order within the allotted time period. Given the failure to serve a copy of the Court's prior Order in the time allotted, the Court entered a second Show Cause Order (Doc. 20) and again directed Plaintiff to serve a copy of the Court's Order and file a notice of service with the Court, scheduled a second show cause hearing, and discharged the Court's prior Order. Additionally, the Court reminded Defendant that compliance with Plaintiff's discovery requests prior to the hearing would obviate the need for sanctions but that failure to appear at the hearing could lead to the imposition of sanctions, including issuance of a warrant for his arrest and commencement of the civil contempt process.

         The Court subsequently conducted the second show cause hearing on April 28, 2017, at which Defendant again failed to appear. Plaintiff informed the Court that it mailed the second Order to Show Cause to Defendant, and, indeed, the certificate of service indicates that Plaintiff only mailed a copy of the Court's second Show Cause Order to the last known address of Defendant in Plant City (Doc. 21). Upon questioning by the Court, Plaintiff could not definitively demonstrate that Defendant personally received a copy of the Court's second Show Cause Order. Accordingly, given the severity of the proposed sanctions, the Court directed Plaintiff to serve a copy of the third Show Cause Order upon Defendant within 14 days and then promptly file a notice of service with the Court demonstrating that Defendant was personally served or providing supporting evidence indicating the basis for serving Defendant at a particular address (Doc. 25). Again, the Court reiterated to Defendant that compliance would prevent the imposition of sanctions but that his failure to appear at the hearing would lead to the issuance of sanctions, which could include issuance of a warrant for his arrest and commencement of the civil contempt process.

         Plaintiff then filed its notice of service, indicating that a process server delivered a copy of the Order to Defendant's wife at Defendant's address in Zephyrhills, Florida (Doc. 26). The Court subsequently conducted the third show cause hearing on June 7, 2017. As with the prior show cause hearings, Defendant failed to appear. During the hearing, the Court acknowledged the repeated attempts to ensure Defendant's receipt of the Court's Orders and repeated attempts to obtain his compliance. Given Defendant's failure to appear or comply with the Court's Orders, Plaintiff ...


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