Larson v. Ching

Filing 105

FINDINGS AND RECOMMENDATION TO DENY WITHOUT PREJUDICE PLAINTIFF'S SECOND MOTION FOR DEFAULT 102 - Signed by JUDGE KEVIN S.C. CHANG on 6/25/09. (The Court FINDS and RECOMMENDS that Plaintiff's Motion be DENIED without prejudi ce. The Court further RECOMMENDS that the district court instruct Plaintiff to refrain from filing additional motions for default judgment until he complies with the applicable rules and that any further motions fordefault judgment filed by Plaintiff not preceded by an entry of default be stricken from the record.) ( Objections to F&R due by 7/10/2009) (emt, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII LONNIE E. LARSON, ) ) Plaintiff, ) ) vs. ) ) ) DARWIN CHING, Director of ) the Department of Labor, ) State of Hawaii ) ) Defendant. ) ___________________________ ) CIVIL NO. 08-00537 SOM-KSC FINDINGS AND RECOMMENDATION TO DENY WITHOUT PREJUDICE PLAINTIFF'S SECOND MOTION FOR DEFAULT

FINDINGS AND RECOMMENDATION TO DENY WITHOUT PREJUDICE PLAINTIFF'S SECOND MOTION FOR DEFAULT On May 26, 2009, pro se Plaintiff Lonnie Larson ("Plaintiff") filed a document entitled "Second Motion for Default."1 The Court finds this matter suitable for

disposition without a hearing pursuant to Local Rule 7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawaii. the reasons discussed below, the Court FINDS and RECOMMENDS that the district court DENY WITHOUT PREJUDICE this Motion. For

Prior to filing the instant Motion, Plaintiff filed three motions/requests for default judgment (doc. nos. 27, 48, and 65), all of which the Court denied.

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Plaintiff alleges that Defendant Darwin Ching ("Defendant") has failed to respond to Plaintiff's First Verified Amended Complaint, filed on May 7, 2009. However, the docket indicates that Defendant filed a motion to dismiss Plaintiff's Amended Complaint on May 26, 2009. Said motion is set for hearing before the Moreover, as the

district court on August 10, 2009.

Court has repeatedly instructed, an entry of default must precede a motion for default judgment and the record before the Court indicates that the clerk has not entered default. See Fed. R. Civ. P. 55(a) ("When

a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default."). Until the

clerk enters default,2 the Court shall not entertain any motions for default judgment. Accordingly, the Court FINDS and RECOMMENDS that Plaintiff's Motion be DENIED without prejudice. The Court further RECOMMENDS that the district court At present, the entry of default is unlikely given that Defendant has responded to Plaintiff's Amended Complaint. 2
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instruct Plaintiff to refrain from filing additional motions for default judgment until he complies with the applicable rules and that any further motions for default judgment filed by Plaintiff not preceded by an entry of default be stricken from the record. IT IS SO FOUND AND RECOMMENDED. Dated: Honolulu, Hawaii, June 25, 2009.

_____________________________ Kevin S.C. Chang United States Magistrate Judge

CV08-00537 SOM-KSC; LARSON V. CHING; FINDINGS AND RECOMMENDATION TO DENY WITHOUT PREJUDICE PLAINTIFF'S SECOND MOTION FOR DEFAULT

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