Hofelich v. State of Hawaii et al

Filing 58

FINDINGS AND RECOMMENDATION THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST GENTRY'S KONA MARINA, INC. AKA G.K.M. INC., GARY LAMBERT, NORMAN GENTRY, (STOCKHOLDERS), CARL VINCENTI, BERNADETTE CHOCK, AND OCEAN CONCEPTS SCUBA LLC BE DENIE D re: 51 . Signed by Judge BARRY M. KURREN on 4/14/2011. (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HOWARD HOFELICH,

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Plaintiff,
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vs.
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STATE OF HAWAII, et al.,
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Defendants.
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______________________________ )

Civ. No. 11-00034 DAE-BMK
FINDINGS AND
RECOMMENDATION THAT
PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT AGAINST
GENTRY’S KONA MARINA, INC.
AKA G.K.M. INC., GARY
LAMBERT, NORMAN GENTRY,
(STOCKHOLDERS), CARL
VINCENTI, BERNADETTE
CHOCK, AND OCEAN
CONCEPTS SCUBA LLC BE
DENIED

FINDINGS AND RECOMMENDATION THAT PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT AGAINST GENTRY’S KONA MARINA, INC. AKA
G.K.M. INC., GARY LAMBERT, NORMAN GENTRY, (STOCKHOLDERS),
CARL VINCENTI, BERNADETTE CHOCK, AND
OCEAN CONCEPTS SCUBA LLC BE DENIED
Before the Court is Plaintiff Howard Hofelich’s Motion For Default
Judgment Against Gentry’s Kona Marina, Inc. aka G.K.M. Inc., Gary Lambert,
Norman Gentry, (Stockholders), Carl Vincenti, Bernadette Chock, and Ocean
Concepts Scuba LLC (Doc. 51). Plaintiff contends that the foregoing Defendants
“have failed to answer the summons within 21 days as required by this District
Court.” Plaintiff therefore seeks default judgment against them. After careful

consideration of the Motion, the Court finds and recommends that Plaintiff’s
Motion be DENIED.1
Plaintiff has filed several motions for default judgment in this case.
However, Plaintiff has not sought entry of default from the Clerk of Court prior to
filing these motions. Plaintiff’s failure to seek entry of default requires that this
Court find and recommend that the instant motion be denied.
Federal Rules of Civil Procedure 55 governs the entry of default by
the clerk and the subsequent entry of default judgment by either the clerk or the
district court. In pertinent part, Rule 55 provides:
(a) Entering a Default. 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.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff’s claim is for a
sum certain or a sum that can be made certain by
computation, the clerk – on the plaintiff’s request, with
an affidavit showing the amount due – must enter
judgment for that amount and costs against a defendant
who has been defaulted for not appearing and who is
neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must
apply to the court for a default judgment . . . .

1

Pursuant to Local Rule 7.2(d), the Court elects to decide this matter without a hearing.
2

The Ninth Circuit Court of Appeals has stated that Rule 55 requires a
“two-step process,” consisting of: (1) seeking the clerk’s entry of default, and
(2) filing a motion for entry of default judgment. Eitel v. McCool, 782 F.2d 1470,
1471 (9th Cir. 1986) (“Eitel apparently fails to understand the two-step process
required by Rule 55.”); Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923
(9th Cir. 2009) (noting “the two-step process of ‘Entering a Default’ and ‘Entering
a Default Judgment’”).
In light of the requirement to obtain entry of default before seeking
default judgment, courts deny motions for default judgment where default has not
been previously entered. See e.g., Marty v. Green, No. 2:10-CV-01823 KJM KJN
PS, 2011 WL 320303, at *3 (E.D. Cal. Jan. 28, 2011) (“Plaintiff’s motion for
default judgment is denied because plaintiff did not follow the procedural steps
required to properly file a motion for default judgment. Specifically, plaintiff
failed to seek a clerk’s entry of default from the Clerk of Court prior to filing his
motion for default judgment.”); Norman v. Small, No. 09-CV-2233 WQH NLS,
2010 WL 5173683, at *2 (S.D. Cal. Dec. 14, 2010) (denying plaintiff’s motion for
default judgment because “the clerk has not entered default”); Bach v. Mason,
1901 F.R.D. 567, 574 (D. Idaho 1999) (“Plaintiffs have improperly asked this court

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to enter a default judgment without first obtaining an entry of default by the clerk.
Since plaintiffs’ motion for entry of default judgment is improper, it is denied.”).
In this case, Plaintiff has not sought entry of default against any
Defendant in this case, and the Clerk of Court has not entered default against any
Defendant in this case. Therefore, Plaintiff has not complied with the requirements
of Rule 55. Without first obtaining an entry of default against the Defendants
named in the present Motion, Plaintiff’s Motion for Default Judgment is
improperly before this Court. See Bach, 190 F.R.D. at 574. The Court therefore
finds and recommends that Plaintiff’s Motion be DENIED.
DATED: Honolulu, Hawaii, April 14, 2011.
IT IS SO FOUND AND RECOMMENDED.

/s/ Barry M. Kurren
United States Magistrate Judge
Dated: April 14, 2011

Hofelich v. State of Hawaii, et al., Civ. No. 11-00034 DAE-BMK; FINDINGS AND
RECOMMENDATION THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
AGAINST GENTRY'S KONA MARINA, INC. AKA G.K.M. INC., GARY LAMBERT,
NORMAN GENTRY, (STOCKHOLDERS), CARL VINCENTI, BERNADETTE CHOCK,
AND OCEAN CONCEPTS SCUBA LLC BE DENIED.
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