Schoenlein v. Frank et al

Filing 25

FINDINGS AND RECOMMENDATION TO DENY 21 & 22 MOTION FOR ENTRY OF DEFAULT JUDGMENT. Objections to F&R due by 2/4/2009. Signed by Magistrate JUDGE KEVIN S.C. CHANG on January 20, 2009. (bbb, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) ) Plaintiff, ) ) vs. ) ) CLAYTON FRANK, FRANCIS ) SEQUIERA, BENNETT DIAZ, SGT. ) ) ARTHUR CARTER, PATRICK ) ESEROMA, ) ) Defendants. _____________________________ ) GREG W. SCHOENLEIN, #A5019148, CIVIL NO. 08-00503 HG-KSC FINDINGS AND RECOMMENDATION TO DENY MOTION FOR ENTRY OF DEFAULT JUDGMENT

FINDINGS AND RECOMMENDATION TO DENY MOTION FOR ENTRY OF DEFAULT JUDGMENT Plaintiff is a prisoner proceeding pro se and in forma pauperis in this prisoner civil rights action. Plaintiff seeks

entry of default judgment, alleging that Defendants have failed to answer the Complaint or otherwise plead "within 20 days of recieving [sic] a properly served court summons." [Doc. 21 at 1] Prior to obtaining a default judgment under Rule 55 of the Federal Rules of Civil Procedure 55, there must be an entry of default as provided by Rule 55(a). See Fed. R. Civ. P. 55(a);

see also Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981). Default judgment can only be entered "against a defendant against whom default has been entered." Brooks v. United States, 29 F.

Supp. 2d 613, 616 (N.D. Cal. 1998).

The decision to enter See Alan Neuman

default is in the discretion of the court.

Productions v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1989). Plaintiff has made no request for entry of default here. As such, entry of default judgment would be premature.

Moreover, a request for default would not be granted in this case, as it is clear that Defendants have not been personally served with the complaint, and are therefore not required to file an Answer within twenty days. On November 25, 2008, the court

granted Plaintiff's in forma pauperis application and directed the U.S. Marshal to serve the amended complaint. [Doc. 7] The

Marshal was directed to request waivers of service of the summons and Amended Complaint from Defendants. Defendants were given, at

a minimum, thirty days to return the requests for waiver, before the Marshal was instructed to attempt personal service. The

docket shows that the Marshal sent the waivers to the Department of Public Safety on December 10, 2008. [See Docs. 10-14] If

Defendants accept waiver of the service of summons and complaint, they then have sixty days, as calculated from the date the request for waivers were sent, within which to answer or otherwise plead. See Fed. R. Civ. P. 12(a)(1)((A)(ii). The

court FINDS that Plaintiff's motion is premature, and RECOMMENDS that it be DENIED. 2

IT IS SO ORDERED. Dated: Honolulu, Hawaii, January 20, 2009.

_____________________________ Kevin S.C. Chang United States Magistrate Judge

Schoenlein v. Frank, et al., Civ. No. 08-00503 HG/KSC; Findings and Recommendation to Deny Motion for Entry of Default Judgment; pro se attys\F&R\DMP\2009\Schoenlein 08-503 HG KSC(dny dflt)

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