Takeuchi v. McHugh

Filing 28

ORDER: (1) ADOPTING FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT, DOC. NO. 25 ; AND (2) DENYING MOTION FOR ENTRY OF DEFAULT, DOC. NO. 27 . Signed by JUDGE J. MICHAEL SEABRIGHT on 2/12/2015. (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

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
JOHN M. McHUGH, SECRETARY OF )
THE ARMY,
)
)
Defendant.
)
________________________________ )

CIV. NO. 14-00299 JMS-KSC
ORDER: (1) ADOPTING FINDINGS
AND RECOMMENDATION TO
DENY PLAINTIFF’S MOTION FOR
DEFAULT JUDGMENT, DOC. NO.
25; AND (2) DENYING MOTION
FOR ENTRY OF DEFAULT, DOC.
NO. 27

ORDER: (1) ADOPTING FINDINGS AND RECOMMENDATION
TO DENY PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT,
DOC. NO. 25; AND (2) DENYING MOTION FOR ENTRY OF
DEFAULT, DOC. NO. 27
Liberally construed, before the court are pro se Plaintiff Patrick
Takeuchi’s (“Plaintiff”) (1) Objections to Magistrate Judge Kevin S.C. Chang’s
January 26, 2015 Findings and Recommendation to Deny Plaintiff’s Motion for
Default Judgment (“F&R”), and (2) Motion for Entry of Default. Doc. No. 27.
Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition
without a hearing. For the reasons set forth below, the court ADOPTS the F&R
and DENIES the Motion for Entry of Default.
Plaintiff filed his Complaint against John M. McHugh, Secretary of
the Army (“Defendant”) on July 2, 2014, Doc. No. 1, and filed an Amended

Complaint on October 31, 2014. Doc. No. 12. On January 23, 2015, Plaintiff
filed a Motion for Default Judgment contending that Defendant had failed to
respond to the Amended Complaint. Doc. No. 24. That same day, however,
Defendant filed an Answer, Doc. No. 23, and Defendant’s counsel appeared for a
Rule 16 Scheduling Conference. See Doc. No. 22, Minutes. Prior to filing his
Motion for Default Judgment, Plaintiff had not requested entry of default, and
default had not been entered. See Doc. No. 25, F&R at 2.
Federal Rule of Civil Procedure 55(a) provides “[w]hen 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.” And entry of default judgment pursuant to “Rule
55[(b)] 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.” Hofelich v. Lacy,
2014 WL 2115219, at *1 (D. Haw. Mar. 25, 2014) (citing Eitel v. McCool, 782
F.2d 1470, 1471 (9th Cir. 1986), and Symantec Corp. v. Global Impact, Inc., 559
F.3d 922, 923 (9th Cir. 2009)).
Plaintiff objects to the F&R’s recommendation to deny default
judgment and seeks entry of default based on Defendant’s failure to file an Answer
within sixty (60) days after service of the Amended Complaint. Doc. No. 27 at 1
2

(citing Federal Rule Civil Procedure 12(a)(2)). Plaintiff’s objection is without
merit.
In recommending that the Motion for Default Judgment be denied,
Magistrate Judge Chang explained that “Plaintiff’s request for default judgment is
premature, insofar as an entry of default must precede a motion for default
judgment.” Doc. No. 25, F&R at 2 (emphasis omitted). Magistrate Judge Chang
further noted that even if Plaintiff were to request entry of default, it would be
improper because Defendant had filed an Answer. Id. at 2 n.1. The court agrees.
Because default has not been entered against Defendant, Plaintiff may
not obtain default judgment. Accordingly, Plaintiff’s objections are DENIED and
the court ADOPTS the Findings and Recommendation to Deny Plaintiff’s Motion
for Default Judgment. Furthermore, because Defendant filed an Answer and is
///
///
///
///
///
///
///
3

currently defending Plaintiff’s claims, entry of default would be improper.
Accordingly, Plaintiff’s Motion for Entry of Default is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 12, 2015.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Takeuchi v. McHugh, Civ. No. 14-00299 JMS-KSC, Order: (1) Adopting Findings and
Recommendation to Deny Plaintiff’s Motion for Default Judgment, Doc. No. 25; and
(2) Denying Motion for Entry of Default, Doc. No. 27

4