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Mora v. Martinez-Clark

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

June 16, 2018

MONICA MORA, Plaintiff,
v.
JULIO MARTINEZ-CLARK, Defendant.

          ORDER

          PAUL G. NYRON UNITED STATES DISRICT JUDGE.

         This cause comes before the Court without oral argument on the following:

1. Plaintiff's Motion for Default Judgment Against Defendant Julio Martinez -Clark (Doc. 38 (“Motion”)), filed February 20, 2018;
2. United States Magistrate Judge Gregory J. Kelly's Report and Recommendation (Doc. 39), submitted April 27, 2018; and
3. Plaintiff's Objection to Magistrate Judge Kelly's Report & Recommendation (Doc. 40), filed May 16, 2018.

         With briefing complete, the matter is now ripe. Upon consideration, Plaintiff's Motion for Default Judgment is due to be denied, and this case dismissed.

         I. BACKGROUND[1]

         Pro 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Defendant are now dividing marital property, and Plaintiff seeks a declaratory judgment stating that (1) the Notices rescinded the loan pursuant to the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and (2) Fremont's failure to respond voided any encumbrances associated with the loan.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).

         A 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. 16).[2]

         Plaintiff 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 Complaint.

         Magistrate 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).[3] Plaintiff objected to the R&R, generally averring that the Amended Complaint adequately alleges a justiciable controversy. (Doc. 40).

         II. STANDARD OF REVIEW

         When a 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. 1990).

         III. ...


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