United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE
cause came on for consideration without oral argument on the
following motion filed herein:
MOTION: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
AGAINST DEFENDANT JULIO MARTINEZ-CLARK (Doc. No. 38)
FILED: February 20, 2018
THEREON it is RECOMMENDED
that the motion be DENIED and
Plaintiff's complaint be DISMISSED WITH
April 26, 2016, Plaintiff, proceeding pro se, filed
a verified complaint (the “Initial Complaint”)
against Defendant. Doc. No. 1. The following facts are taken
from the Initial Complaint. Plaintiff was the owner of real
property in Orlando, Florida (the “Property”).
Id. at ¶ 4. In February 2006, Defendant, who
appears to have been Plaintiff's husband at the time,
informed Plaintiff that he needed to use the Property as
security for a loan. Id. at ¶¶ 5, 15.
Plaintiff agreed to the transaction and executed the
necessary papers to complete the same. Id. at ¶
6. Plaintiff recognized that there is no evidence showing
that the loan's lender was allowed to do business in
Florida or that the lender was able to fund and consummate a
loan transaction. Id. at ¶ 8. Plaintiff
demanded that Defendant take action to remove the
Property's encumbrances. Id. at ¶¶
9-10. On December 12, 2006, Plaintiff and Defendant mailed
notices of loan rescission (the “Notices”) to the
“named payee, ” which appears to be Fremont
Investment and Loan (“Fremont”). Id. at
¶ 11. Defendant informed Plaintiff that Fremont's
failure to respond to the Notices voids the Property's
encumbrances associated with the loan. Id. at
¶¶ 12-14, 17. Plaintiff and Defendant are in the
process in dividing marital property, and Plaintiff seeks a
declaratory judgment stating that: 1) under the Truth in
Lending Act, 15 U.S.C. § 1601 et seq., the
loan's rescission was effectuated at the time the Notices
were sent; and 2) any encumbrances associated with the loan
were voided due to Fremont's failure to respond.
Id. at 5-6.
23, 2016, Plaintiff filed a return of service stating that
Defendant was served on May 4, 2016. On May 31, 2016,
Plaintiff moved for entry of clerk's default against
Defendant, which was entered on June 1, 2016. Doc. Nos. 8, 9.
On June 30, 2016, Plaintiff moved for entry of default
judgment against Defendant. Doc. No. 10.
November 22, 2016, the undersigned recommended that the Court
deny Plaintiff's motion for default judgment and dismiss
the Initial Complaint without prejudice because Plaintiff
failed to allege an actual controversy resulting in adverse
legal interests. Doc. No. 13 at 5. The undersigned found no
adverse legal interest under the Declaratory Judgment Act
because the alleged facts show the parties' mutual
interest in receiving a declaratory judgment stating that the
Notices rescinded the Property's encumbrances.
Id. The undersigned also found that the Initial
Complaint failed to name an indispensable party because it
failed to identify the person or entity holding the adverse
claim to the Property. Id. at 5-6. On January 24,
2017, United States District Judge Paul G. Byron dismissed
the Initial Complaint without prejudice. Doc. No. 15. On
February 7, 2017, Plaintiff filed an amended verified
complaint (the “Amended Complaint”) stating
allegations similar to the Initial Complaint. Doc. No. 16.
The Amended Complaint also named U.S. Bank, National
Association (“U.S. Bank”) as another Defendant.
Id. On July 7, 2017, U.S. Bank moved to dismiss the
Amended Complaint, and the Court granted U.S. Bank's
motion on August 9, 2017. Doc. Nos. 27, 29.
February 20, 2018, Plaintiff filed another motion seeking
entry of default judgment (the “Motion”) against
Defendant. Doc. No. 38. The Motion states that Defendant was
served on May 4, 2016, and the Clerk entered default against
him on June 1, 2016. Doc. No. 38 at 1. Plaintiff never filed
an affidavit of service or presented any other evidence
showing that the Amended Complaint was served on Defendant.
has appeared in two other cases on the same set of operative
facts. On March 28, 2016, Plaintiff filed a similar complaint
against the same defendant and requested the same relief
sought in this action. See Mora v. Martinez-Clark (Mora
I), Case No: 6:16-cv-526-PGB-DAB (M.D. Fla. 2016), Doc.
No. 1 at 5-6. When Plaintiff requested leave to proceed
in forma pauperis, United States Magistrate Judge
David A. Baker recommended that Plaintiff's request be
denied and that the case be dismissed “because the
claim, as pled, fails to state a cause or controversy
between these parties.” Mora I, Doc.
No. 3 at 4. Judge Baker also found that despite the
Declaratory Judgment Act's requirement of an actual
controversy, “it is plain that their interests are
aligned viz-a-viz their position that the encumbrance was
‘rescinded.' As such, there is no adverse legal
interest between the two named parties, and no controversy to
adjudicate.” Id. Judge Byron adopted and
confirmed Judge Baker's recommendation. Mora I,
Doc. No. 4.
April 27, 2016, Plaintiff, then a defendant, filed a notice
of removal in a foreclosure action. See U.S. Bank, N.A.
v. Martinez-Clark et. al. (Mora II), Case No:
6:16-cv-717-PGB-KRS, (M.D. Fla. 2016), Doc. No. 1. Despite
the case involving only state law claims, Plaintiff asserted
that federal jurisdiction existed because she had raised
“the defense of [Truth in Lending Act]
rescission.” Mora II, Doc. No. 1 at 3. United
States Magistrate Judge Karla R. Spaulding recommended that
the Court remand the case “because it was improvidently
removed” due to lack of subject matter jurisdiction.
Mora II, Doc. No. 30 at 3. On October 11, 2016,
Judge Byron adopted and confirmed Judge Spaulding's
recommendation. Mora II, Doc. No. 32.
Federal Rules of Civil Procedure establish a two-step process
for obtaining a default judgment. Fed.R.Civ.P. 55. First,
when a party against whom a judgment for affirmative relief
is sought fails to plead or otherwise defend as provided by
the Federal Rules of Civil Procedure (and that fact is made
to appear by affidavit or otherwise) the Clerk enters
default. Fed.R.Civ.P. 55(a). Second, after obtaining
clerk's default, the plaintiff must move for default
judgment. Fed.R.Civ.P. 55(b). Before entering default
judgment, the court must ensure that it has jurisdiction over
the claims and parties, and that the well-pled factual
allegations of the complaint, which are assumed to be true,
adequately state a claim for which relief may be granted.
Nishimatsu Constr. Co. v. Houston Nat'l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975).