United States District Court, M.D. Florida, Orlando Division
G. NYRON UNITED STATES DISRICT JUDGE.
cause comes before the Court without oral argument on the
1. Plaintiff's Motion for Default Judgment Against
Defendant Julio Martinez -Clark (Doc. 38
(“Motion”)), filed February 20,
2. United States Magistrate Judge Gregory J. Kelly's
Report and Recommendation (Doc. 39), submitted April 27,
3. Plaintiff's Objection to Magistrate Judge Kelly's
Report & Recommendation (Doc. 40), filed May 16, 2018.
briefing complete, the matter is now ripe. Upon
consideration, Plaintiff's Motion for Default Judgment is
due to be denied, and this case dismissed.
se Plaintiff Monica Mora initiated this action on April
26, 2016, against Defendant Julio Martinez-Clark. (Doc. 1
(“Initial Complaint”)). The
Initial Complaint detailed a loan agreement entered into by
Plaintiff and Defendant, wherein Plaintiff's property
served as collateral. (Id. ¶¶ 5-6, 15).
The parties later sought to remove the encumbrance, sending
notices of loan rescission
(“Notices”) to Fremont
Investment and Loan, the “named payee.”
(Id. ¶ 11; Doc. 1-1). Plaintiff and Defendant
are now dividing marital property, and Plaintiff seeks a
declaratory judgment stating that (1) the Notices rescinded
the loan pursuant to the Truth in Lending Act, 15 U.S.C.
§ 1601 et seq., and (2) Fremont's failure
to respond voided any encumbrances associated with the loan.
(Doc. 1, ¶¶ 5-6).
clerk's default was entered against Defendant on June 1,
2016. (Doc. 9). Plaintiff's subsequent motion for entry
of default judgment against Defendant (Doc. 10) was denied,
however, because the Initial Complaint failed to allege a
controversy between Plaintiff and Defendant (and for failure
to name an indispensable party). (Doc. 13). The Initial
Complaint was thus dismissed without prejudice. (Doc. 15). On
February 7, 2017, Plaintiff filed an Amended Complaint. (Doc.
filed the instant Motion on February 28, 2018, seeking a
default judgment against Defendant. (Doc. 38). Plaintiff
neglected to file an affidavit of service or submit other
evidence showing that Defendant was served with the Amended
Judge Kelly's well-reasoned R&R recommended the Court
dismiss Plaintiff's Amended Complaint with prejudice for
Plaintiff's repeated failure to allege an actual
controversy between Plaintiff and Defendant. (Doc. 39, pp.
5-6). Plaintiff objected to the R&R,
generally averring that the Amended Complaint adequately
alleges a justiciable controversy. (Doc. 40).
STANDARD OF REVIEW
party objects to a magistrate judge's findings, the
district court must “make a de novo
determination of those portions of the report . . . to which
objection is made.” 28 U.S.C. § 636(b)(1). The
district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” Id. The district court must
consider the record and factual issues independent of the
magistrate judge's report, as de novo review is
essential to the constitutionality of § 636. Jeffrey
S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir.