United States District Court, E.D. Texas, Sherman Division.
Texas Silicate Distributors, LLC, Plaintiff,
v.
The United States (Internal Revenue Service), et al., Defendants.
Case No. 4:12cv572
4:12–cv–00572Filed 11/27/2013
D. Ray Murphy, Abernathy Roeder Boyd & Joplin, Mckinney, TX, for Plaintiff.
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Ron Clark, United States District Judge
*1 Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636. On October 1, 2013, the report of the Magistrate Judge was entered containing proposed findings of fact and recommendations that Plaintiff’s Motion for Interlocutory Default Judgment Against Defendants [Doc. # 34] be granted.
Having received the report of the United States Magistrate Judge, and no objections thereto having been timely filed, this court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and conclusions of the court.
It is, therefore, ORDERED that Plaintiff’s Motion for Interlocutory Default Judgment Against Defendants [Doc. # 34] is GRANTED.
It is further ORDERED that Defendants Roddie Trucking, LLC, Rogelio Palenzuela d/b/a Palenzuela Trucking, Blinks Trucking, Inc., Alfaro Hernandez d/b/a AH Transportation, and Luis Claudio d/b/a Cano Trucking take nothing from this proceeding and are DISMISSED with prejudice.
The Clerk is directed to terminate Roddie Trucking, LLC, Rogelio Palenzuela d/b/a Palenzuela Trucking, Blinks Trucking, Inc., Alfaro Hernandez d/b/a AH Transportation, and Luis Claudio d/b/a Cano Trucking from this civil action.
So ORDERED.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
AMOS L. MAZZANT, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff’s Motion for Interlocutory Default Judgment Against Defendants (Dkt.# 34). Having considered the relevant pleadings, the Court finds that the motion should be granted.
Plaintiff Texas Silicate Distributors, LLC (“Texas Silica”) is a distributor of sand which is used in industrial applications. Plaintiff retains carriers to deliver the sand its customers order. Defendant Roddie Trucking is both a carrier and a broker, according to the U.S. Department of Transportation. Plaintiff retained Roddie Trucking to deliver sand to customers. On numerous occasions, Roddie Trucking delivered the sand directly at the request of Plaintiff. On other occasions, Roddie Trucking retained third party carriers to deliver the sand and fulfill orders Plaintiff placed to Roddie Trucking. Plaintiff currently owes Roddie Trucking $18,875 for delivery of material. Plaintiff does not dispute this debt. Through its investigation, Plaintiff believes that the following carriers have delivered Plaintiff’s sand pursuant to agreement with Roddie Trucking: 2 CAP Investments, LLC, Primetime Transport, LLC, GMB Trucking, Aarons Freight, Inc., Rogelio Palenzuela d/b/a Palenzuela Trucking, C & C, Blink Trucking, Inc., Alfaro Hernandez d/b/a AH Transportation, A & H Express, LLC, Arnoldo Canizales d/b/a Canizales Brothers Trucking, Luis Claudio d/b/a Cano Trucking, and Millennium Carriers Trucking, LLC.
Plaintiff has received conflicting demands for the funds otherwise owed to Roddie Trucking. Recently, Plaintiff received a Notice of Levy from the United States indicating that it was claiming all accounts receivable of Roddie Trucking up to the total amount of taxes owed by Roddie Trucking to the United States. According to the Notice of Levy, the amount owed by Roddie Trucking to the United States exceeds the amount owed by Texas Silica to Roddie Trucking for delivery of Texas Silica sand. On June 3, 2013, Plaintiff filed a stipulation of dismissal as to the United States of America (Internal Revue Services) (Dkt.# 38).
*2 The Court finds that the Defendants, Roddie Trucking, LLC, Rogelio Palenzuela d/b/a Palenzuela Trucking, Blinks Trucking, Inc., Alfaro Hernandez d/b/a AH Transportation, and Luis Claudio d/b/a Cano Trucking, were duly and timely served with summons, as is provided by law. The Court further finds that said Defendants, Roddie Trucking, LLC, Rogelio Palenzuela d/b/a Palenzuela Trucking, Blinks Trucking, Inc., Alfaro Hernandez d/b/a AH Transportation, and Luis Claudio d/b/a Cano Trucking have failed to appear and answer within the time required by law, and are thereby in default.
These Defendants were served with a copy of Plaintiff’s Complaint. Defendants have not answered or otherwise appeared in this action. The Clerk entered default against each of these Defendants on June 7, 2013 (Dkt.# 43, # 44, # 45, # 46, # 47). Plaintiff filed its Motion for Default Judgment (Dkt.# 34).
Rule 55 of the Federal Rules of Civil Procedure sets forth certain conditions under which default may be entered against a party, as well as the procedure to seek the entry of default judgment. Fed. R. Civ. P. 55. The Fifth Circuit requires a three-step process for securing a default judgment. New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). First, a default occurs when a defendant has failed to plead or otherwise respond to the complaint within the time required by Rule 12 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 55(a); New York Life Ins., 84 F.3d at 141. Next, an entry of default may be entered by the clerk when the default is established by affidavit or otherwise. Fed. R. Civ. P. 55(a); New York Life Ins., 84 F.3d at 141. Third, a plaintiff may then apply to the clerk or the court for a default judgment after an entry of default. Fed. R. Civ. P. 55(b); New York Life Ins., 84 F.3d at 141
The Court finds as follows:
1. The Court has jurisdiction over the parties and subject matter, and venue is proper in this court.
2. The Summons and Complaint were served on Defendants.
3. Defendants failed to answer or otherwise defend as provided by the Federal Rules of Civil Procedure following proper service.
4. Default against Defendants was duly entered by the Clerk of this Court on June 7, 2013.
5. The time permitted to file an Answer pursuant to Fed. R. Civ. P. 12(a)(1)(A) has expired and therefore Defendants have deemed to have admitted by default all the factual allegations in Plaintiff’s Complaint. Fed. R. Civ. P. 8(b)(6).
6. The Court finds that Texas Silicate Distributors, LLC is not liable to and is not indebted to the following Defendants: Roddie Trucking, LLC; Rogelio Palenzuela d/b/a Palenzuela Trucking; Blinks Trucking, Inc.; Alfaro Hernandez d/b/a AH Transportation; and Luis Claudio d/b/a Cano Trucking.
7. The Court finds that Defendants, Roddie Trucking, LLC, Rogelio Palenzuela d/b/a Palenzuela Trucking, Blinks Trucking, Inc., Alfaro Hernandez d/b/a AH Transportation, and Luis Claudio d/b/a Cano Trucking take nothing from this proceeding.
8. The Court finds that Plaintiff is entitled to attorneys’ fees, but the affidavit submitted is insufficient to support the award requested.
9. The Court further finds that there are other Defendants that have not appeared, but remain active on the docket. Thus, the Court cannot close this matter.
RECOMMENDATION
It is therefore recommended that Plaintiff’s Motion for Interlocutory Default Judgment Against Defendants (Dkt.# 34) be GRANTED.
It is further recommended as follows:
That Defendants Roddie Trucking, LLC, Rogelio Palenzuela d/b/a Palenzuela Trucking, Blinks Trucking, Inc., Alfaro Hernandez d/b/a AH Transportation, and Luis Claudio d/b/a Cano Trucking take nothing from this proceeding and be DISMISSED with prejudice.
*3 Within fourteen (14) days after service of the magistrate judge’s report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988).
SIGNED this 1st day of October, 2013.
