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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

OLDCASTLE SOUTHERN GROUP, INC.,

f/k/a APAC SOUTHEAST, INC.,

Plaintiff,

v. 3:10cv345/WS/CJK

BURNHAM PAVING, LLC, et al.,

Defendants.

_______________________________________________________________

ORDER AND

REPORT AND RECOMMENDATION

Pursuant to notice to the parties, the court conducted a status conference by

telephone on June 6, 2012. (Doc. 83) Having considered the matters set out in the

notice and also the entire docket of this case, the court makes the following findings:

1. On September 1, 2011, plaintiff propounded separate written discovery

requests to each defendant.

2. After defendants failed to timely respond, and despite plaintiff’s efforts

to obtain defendant’s overdue initial Rule 26 disclosures and discovery responses

without court intervention, on October 12, 2011, plaintiff filed its Motion to Compel

and Memorandum of Law. (Doc. 45) 

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3. On October 14, 2011, the court ordered defendants to show cause within

ten (10) days as to why plaintiff’s Motion to Compel should not be granted. (Doc.

49) 

4. On October 17, 2011, defense counsel moved to withdraw. (Doc. 52) 

5. Defendants responded through counsel to the court’s order to showcause

on October 21, 2011 (doc. 55), seeking an additional thirty (30) days to provide 

discovery responses. 

6. The District Judge deferred defense counsel’s Motion to Withdraw on

October 21, 2011, ordering that within thirty (30) days defendants: “(1) file an

appropriate notice of substitution of counsel, or (2) file a notice of intention to

proceed without counsel, or (3) explain why Mr. Willis should continue with his

representation despite his desire to withdraw.” (Doc. 56)

7. On October 31, 2011, the court stayed all discovery pending resolution

of defense counsel’s Motion to Withdraw, or within forty-five (45) days, whichever

occurs first. (Doc. 57) 

8. Each defendant filed their respective consents to defense counsel’s

Motion to Withdraw on December 7, 2011. (Doc. 60) 

9. The District Judge granted defense counsel’s Motion to Withdraw on

December 13, 2011, ordering that by January 13, 2012, defendants “have substitute

counsel file a notice of appearance or otherwise advise the court and opposing

counsel about how they plan to proceed with regard to representation, keeping in

mind that an LLC cannot appear in court pro se (i.e., without counsel).” (Doc. 61)

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10. On January 18, 2012, plaintiff filed a letter it received from non-party,

Willard Carl Burnham, on January 13, 2012. In the letter, Mr. Burnham requests an

additional thirty (30) days to obtain new counsel for defendants. (Doc. 66)

11. On February 23, 2012, the court entered its order and report and

recommendation, recommending that the clerk enter defaults against defendants,

Burnham Paving, L.L.C. and Burnham Paving & Striping, LLC (the “Corporate

Defendants”), for failing to obtain new counsel. (Doc. 69) The court also

acknowledged that “various discovery matters remained pending, including

documents 45, 46, and 47,” and ordered plaintiff to provide a statusreport to the court

within one week before ruling on those matters. (Doc. 69)

12. The District Court adopted the above recommendation on March 26,

2012, directing the clerk to enter defaults against the corporate defendants, which the

clerk did on March 26 and 27, 2012. (Docs. 74, 75 & 76)

13. As detailed in plaintiff’s series of Status Reports filed with the court

(docs. 70, 78 & 82), from approximately February through March 2012, plaintiff’s

counsel and Willard Carl Burnham engaged in what appeared to be good faith

settlement discussions. At one point plaintiff’s counsel believed that the parties had

reached an understanding that would have resolved the matter. However, when

plaintiff’s counsel provided Mr. Burnham with draft settlement documents, neither

Mr. Burnham nor any of the defendants responded, despite plaintiff’s counsel’s

numerous attempts to communicate with defendants. 

14. After all communications with defendants ceased, plaintifffiled its Third

Status Report, Motion for Entry of Final Judgments Against Corporate Defendants,

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Motion for Pretrial Status Conference and Incorporated Memorandumof Law. (Doc.

82)

15. On May 15, 2012, the court entered its order and notice of telephone

conference (doc. 83), requiring defendants to provide the court in writing with a

contact telephone number to participate in a telephone conference scheduled for June

6, 2012 at 10:00 a.m. CDT. 

16. The court further ordered that “[t]he following matters will be addressed

at the telephone conference: (1) the status of the case, including all outstanding

discovery, (2) the intentions of the remaining defendants in terms of participating in

this case; and (3) any other matter raised in plaintiff’s Status Report (doc. 82). 

Defendants Jason C. Burnhamand KennethE. Burnhamare warned that failure

to participate in this conference in good faith will be deemed an intentional

violation of orders of this court, and will result in sanctions, including entry of

default against these defendants.” (Doc. 83) (emphasis in original). 

17. Notwithstanding defendants’ failure and refusal to provide the court with

a contact telephone number or otherwise participate in the telephone conference, on

June 6, 2012, the court conducted the scheduled telephone conference, where only

plaintiff’s counsel appeared by telephone.

18. Based upon the foregoing, the court finds that no sort of intermediate

sanctions will serve to move this matter toward resolution. The defendants have been

given every opportunity to participate, but have apparently decided to ignore the

repeated orders of the court. 

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Accordingly, it is ORDERED:

1. Within ten (10) days, plaintiff shall file with the court affidavits

demonstrating: (a) its liquidated damages, (b) prejudgment interest owed, calculated

from the date this lawsuit was filed, and (c) any attorneys’ fees and costs incurred by

plaintiff as a result of this action, which plaintiff is entitled to recover pursuant to the

underlying contract referenced and attached to the second amended complaint and

pursuant to Federal Rules of Civil Procedure 37(b)(2)(A)(vi) and 37(c)(1)(C). (Doc. 

21, Ex. A) 

2. Defendants, Jason C. Burnham and Kenneth E. Burnham, shall have

twenty (20) days after plaintiff files the above-referenced affidavits(s) to file any

response. 

And it is respectfully RECOMMENDED: 

1. Pursuant to Federal Rules of Civil Procedure 37(b)(2)(A)(vi) and

37(c)(1)(C), the clerk should be directed to enter defaults against defendants, Jason

C. Burnham and Kenneth E. Burnham, for their repeated failure to comply with

numerous orders of this court as there is no lesser sanction available other than entry

of a default against these defendants.

2. Thematter should remain open for consideration of any affidavit(s) filed

by plaintiff and/or any response or objections filed by defendants, Jason C. Burnham

and Kenneth E. Burnham. Upon the report and recommendation of the magistrate

judge, the court should enter a final judgment against all defendants, jointly and

severally, (defaults have already been entered against the corporate defendants (docs.

74, 75 & 76) for the amount of plaintiff’s liquidated damages, plus prejudgment

interest, plus plaintiff’s attorneys’ fees and costs. 

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At Pensacola, Florida this 12th day of June, 2012. 

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon the magistrate judge and all

other parties. Failure to object may limit the scope of appellate review of factual

findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir.

1988).

Case No: 3:10cv345/WS/CJK

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