JTH Tax, Inc. v. Hines, No. 2:2015cv00558 - Document 50 (E.D. Va. 2017)

Court Description: MEMORANDUM ORDER re: 35 Motion for Default Judgment; 47 Report and Recommendations. The court, having examined the Objections to the R&R filed by the Plaintiff, and having made de novo findings with respect thereto, does hereby O VERRULE the Plaintiff's Objections; ADOPT AND APPROVE, with the exception of the Magistrate Judge's finding of no dilatory conduct, the findings and recommendations set forth in the R&R of the United States Magistrate Judge, filed on Decemb er 15, 2016, ECF No. 47; DENY the Plaintiff's Motion filed on October 13, 2016, ECF No. 35; and DIRECT the Clerk to set aside the entry of default against the Defendant. IT IS SO ORDERED. Signed by Chief District Judge Rebecca Beach Smith and filed on 1/18/17. Copies distributed to all parties 1/18/17. (ldab, )
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JTH Tax, Inc. v. Hines Doc. 50 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division JTH TAX, INC. d/b/a LIBERTY TAX SERVICE, Plaintiff, CIVIL ACTION NO. V. 2!l5cv558 CHARLES HINES, Defendant. MEMORANDUM ORDER This Motion matter for Support, comes Default filed on before Judgment October the court on ("Motion") 13, 2016. the and EOF Plaintiff's Memorandum Nos. 35, 36. Defendant filed his Response in Opposition on November 7, ECF No. 40. Motion to pursuant Federal On November 16, 2016, United States to the provisions Rule of Civil 28 Procedure Judge Robert U.S.C. 72(b), § to including evidentiary hearings, if necessary, the proposed undersigned applicable, Motion. The ("R&R") and ECF No. district judge recommendations The 2016. this court referred the above Magistrate of in for Krask, 636 (b)(1)(B) conduct and hearings, and to submit to findings the J. of disposition fact, of if the 43. Magistrate Judge on December 15, filed 2016. his ECF No. Report 47. and Recommendation The Magistrate Judge recommended denying the Plaintiff's Motion and setting aside the Dockets.Justia.com entry of default against the Defendant. R&R at 1. By copy of the R&R, the parties were advised of objections to the Magistrate Judge. findings their right and recommendations Id. at 6. On December 29, filed an Objection to the R&R. to ECF No. 48. 2016, file written made by the the Plaintiff On January 11, 2017, the Defendant filed a Response to the Plaintiff's Objection. ECF No. 49. I. Pursuant Procedure, entirety, of the to the Rule LEGAL STANDARD 72 (b) court, of having the Federal reviewed the Rules of record Civil in its shall make a de novo determination of those portions R&R to which the Fed. R. Civ. P. 72(b). Plaintiff has specifically objected. The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1). II. DISCUSSION The Plaintiff objects to the Magistrate Judge's application of the six-factor articulated Universal, in Colleton Inc. , Specifically, test 616 the acted with setting Preparatory F.3d 413, Plaintiff erred in applying the has for 417 reasonable Acad., (4th Cir. argues following aside that factors; the default Inc. 2010). judgment v. Hoover Obj . at 1. Magistrate Judge whether the Defendant promptness, the personal responsibility of the Defendant, prejudice to the Plaintiff, and whether there is a history of dilatory actions. Id. The Magistrate Judge's overall application of the Colleton factors, entry that and his recommendation to deny the Motion and set aside of default, the at 2-3, is Defendant in correct. has contrast Although engaged with the in the Plaintiff dilatory Magistrate action, Judge's objects see Obj. finding that "there is no history of dilatory action in this case," R&R at 5, the court conduct, is not persuaded that "[the Defendant's] and the resulting prejudice to Liberty, dilatory weigh heavily against setting aside default." Obj. at 3. A history of dilatory conduct is but one of motion for default overall F.3d for factors judgment, resolving at 417. six consider and there cases Moreover, to on while the the is a merits. in analyzing a strong preference See Defendant Colleton, has caused 616 some delay, the delay has neither been severe nor the result of bad faith. Such delay, therefore, setting aside default," Obj. would not at 3, "weigh heavily against but would be negligible in the overall calculation of the Colleton factors. The court also agrees with the Magistrate Judge Defendant delay, Judge's has see not R&R findings caused at on 5, the and the Plaintiff likewise factors of prejudice stands by reasonable that through the the such Magistrate promptness and personal responsibility, See id. which have been given adequate weight. a t 4. For these reasons, and especially preference for resolution on the merits, at 417, the court agrees with in the 616 F.3d the Magistrate Judge's findings the Colleton factors weigh in favor of that the default of see Colleton, that Plaintiff's light Motion should be the Defendant, denied and the and entry of s e t aside. III. The court, CONCLUSION having examined the Objections to the R&R filed by the Plaintiff, and having made ^ thereto, does hereby ADOPT AND APPROVE, OVERRULE novo findings with respect the Plaintiff's Objections; with the exception of the Magistrate Judge's finding of no dilatory conduct, the findings and recommendations set forth filed on Motion in the R&R of the December 15, 2016, filed on October 13, United ECF States No. 2016, 47; ECF Magistrate DENY No. the 35; and Judge, Plaintiff's DIRECT the Clerk to set aside the entry of default against the Defendant. The Clerk is DIRECTED to send a copy of this Order to all parties. IT IS SO ORDERED. /s/ Rebecca Beach Smith Chief Judge REBECCA BEACH SMITH January | ^ , 2017 CHIEF JtJDGE Memorandum