United States District Court, D. New Jersey
Katharine S. Hayden, U.S.D.J.
matter comes before the Court upon a report and
recommendation filed by Magistrate Judge Cathy Waldor (D.E.
31), recommending that the Court grant plaintiff's motion
(D.E. 27) made pursuant to Fed.R.Civ.P. 37 to strike the
answer (D.E. 13) filed by defendants VMN Foothills, TIC, LLC,
DK TIC, LLC, Mayank Patel, Narinder Sanwal, Dilip Patel and
Kokila Patel (“defendants”), 1 and to enter
default against them pursuant to Fed.R.Civ.P. 55(a). For the
reasons set forth below and in Judge Waldor's report and
recommendation, the Court accepts Judge Waldor's report
and recommendation in whole and grants plaintiff's
16, 2015, Ramada Worldwide, Inc. (“RWI”) filed a
complaint against defendants seeking damages for a breach of
a license agreement and personal guarantee (D.E. 1).
Defendants filed their answer on September 2, 2015 (D.E. 13).
letter dated September 8, 2015, RWI served defendants with
discovery requests and noticed defendants' depositions.
See Certification of Brian P. Couch, dated July 6,
2016 (the 1 An additional individual defendant, Virender
Sanwal, pro se, is not the subject of the instant
Cert.”), Exh. A. Following a Rule 16 conference on
November 10, 2015, Judge Waldor issued a pretrial scheduling
order requiring defendants to serve Rule 26 disclosures on or
before November 20, 2015, and responses to the above-noted
discovery demands on or before January 18, 2016 (D.E. 16).
Defendants failed to meet these deadlines.
letters dated January 19, 2016 and February 8, 2016, RWI
again demanded the outstanding discovery, and also canceled
and rescheduled defendants' depositions due to their
failure to provide written discovery responses. See
Couch Cert., Exhs. B, C, D, and E. Despite these repeated
requests, defendants still failed to provide the outstanding
discovery. See Couch Cert., at ¶ 11.
letters dated April 8, May 20, and June 23, 2016, RWI
requested the Court's permission to file a motion to
strike defendants' answer and enter default against them
(D.E. 20, 23, 25). In conferences held on May 6, May 23, and
June 24, 2016, Judge Waldor addressed defendants' ongoing
discovery deficiencies, and directed them to participate in
the case and to comply with the pretrial scheduling order.
See Report and Recommendation, dated October 20,
2016 (D.E. 31), at p. 1. During the June 24 conference, Judge
Waldor granted defendants additional time to comply, and gave
RWI permission to file the instant motion without further
notice if defendants failed to produce discovery by July 5,
2016 (D.E. 26).
defendants failed to meet the extended deadline, RWI filed
the instant motion (D.E.27) to strike defendants answer (D.E.
13) and enter default against them. The Court referred the
motion to Magistrate Judge Waldor, who issued a report and
recommendation in plaintiff's favor. For the reasons set
forth below, the Court accepts Judge Waldor's report and
recommendation in whole and grants plaintiff's motion.
Standard of Review
magistrate judge addresses dispositive motions, s/he submits
a report and recommendation to the district court. See 28
U.S.C. §636(b)(1)(A); Fed.R.Civ.P. 72; L. Civ. R.
72.1(a)(2). The district court may then “accept, reject
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. §636(b)(1)(c); see also L.Civ. R.
72.1(c)(2). “[A] Report and Recommendation does not
have the force of law unless and until the district court
enters an order accepting or rejecting it.” See
Murphy v. Zajac, 2014 WL 3845830, at *2 (D.N.J. June 4,
2014) (citing United Steelworkers of Am., AFL-CIO v. New
Jersey Zinc Co., 828 F.2d 1001, 1005 (3d Cir. 1987)).
to Fed.R.Civ.P. 72(b)(3), in reviewing a magistrate
judge's recommendation on a dispositive motion, this
Court “must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Where, as here, no objection is filed,
“the [C]ourt need only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” 1983 Advisory Committee Notes to
as here, a party “fails to obey a scheduling order or
other pretrial order” Rule 16(f)(1)(C) permits
sanctions as authorized by Rule 37(b)(2)(A)(iii), which in
turn provides that the Court may “strik[e] pleadings in
whole or in part.” Rule 55(a) further provides that
entry of default is appropriate where, as here, a party
“has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise.” The docket
and plaintiff's counsel's unopposed certification
establish that defendants have failed repeatedly to obey the
pretrial scheduling order and have plainly failed to defend
this action. Although defendants filed an answer and appeared
for conferences, they failed to provide initial disclosures
or respond to written discovery and deposition requests, in
contravention of both the pretrial scheduling order and Judge
Waldor's subsequent orders, despite receiving ample
additional time for compliance. As Judge Waldor indicates,
“[d]efendant's pattern of non-compliance and
non-participation has persisted for several months despite
[p]laintiff's entreaties and the Court's
[o]rders.” See Report and Recommendation, at
p. 2. Defendants have refused to participate in this action
despite receiving no less than three letters from plaintiff
demanding compliance, attending no less than three
conferences with Judge Waldor specifically addressing the
discovery deficiencies, and receiving a generous extension of
time. Defendants have intentionally and willfully failed to