U.S. Bank National Association vs. Mizukami

Filing 15

ORDER DENYING DEFENDANT'S REQUEST FOR DEFAULT re: 9 ; FINDINGS AND RECOMMENDATION DENYING DEFENDANT'S MOTION FOR DEFAULT JUDGMENT re: 10 . Signed by U.S. MAGISTRATE JUDGE BARRY M. KURREN on 1/15/2016. (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 will be served by first class mail on Tuesday, January 19, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
U.S. BANK NATIONAL
ASSOCIATION,

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Plaintiff,
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vs.
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GLENN KIYOHIKO MIZUKAMI,
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Defendants.
______________________________ )

CIV. NO. 15-00523 JMS-BMK

ORDER DENYING DEFENDANT’S
REQUEST FOR DEFAULT;
FINDINGS AND
RECOMMENDATION DENYING
DEFENDANT’S MOTION FOR
DEFAULT JUDGMENT

ORDER DENYING DEFENDANT’S REQUEST FOR DEFAULT;
FINDINGS AND RECOMMENDATION DENYING DEFENDANT’S
MOTION FOR DEFAULT JUDGMENT
Before the Court is Defendant Glenn Mizukami’s Request to Enter
Default (Doc. 9) and Motion for Default Judgment (Doc. 10). After reviewing the
record of this case, the Court DENIES the request for default and finds and
recommends that default judgment be DENIED.1
On November 12, 2015, Plaintiff U.S. Bank National Association filed
the Complaint for foreclosure in state court. (Notice of Removal at Ex. A.)
Defendant removed the action to federal court on December 18, 2015. That same
day he filed an Answer. (Doc. 6.) On December 29, 2015, Defendant filed an
Amended Answer and Counterclaims. (Doc. 8.) Defendant now moves for entry

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The Court elects to decide this Motion without a hearing, pursuant to Local Rule 7.2(d).

of default and default judgment as to his Counterclaims.
Entry of default is proper “[w]hen a party against whom a judgment or
affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P.
55(a). After obtaining default, the plaintiff may seek default judgment pursuant to
Rule 55(b).
Here, Defendant filed Counterclaims on December 29, 2015.
According to Federal Rules of Civil Procedure Rule 12(a)(B), a “party must serve an
answer to a counterclaim . . . within 21 days after being served with the pleading that
states the counterclaim.” Twenty-one days have not passed since the
Counterclaims were served on Plaintiff. Consequently, it is premature for
Defendant to seek entry of default as to his Counterclaims. The Court therefore
DENIES his request to enter default.
Absent an entry of default, default judgment is inappropriate.
Hofelich v. Hawaii, Civ. No. 11-00034 DAE-BMK, 2011 WL 1438096, at *1 (D.
Haw. April 14, 2011) (“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.”). Accordingly, because this Court denies
Defendant’s request for entry of default above, the Court finds and recommends that
his Motion for Default Judgment be DENIED.

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Any Objection to these Findings and Recommendations are due in
accordance with the Federal Rules of Civil Procedure and this Court’s Local Rules.
IT IS SO FOUND AND RECOMMENDED.
DATED: Honolulu, Hawaii, January 15, 2016.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

U.S. Bank National Association v. Glenn Mizukami, CIV. NO. 15-00523 JMS-BMK; ORDER
DENYING DEFENDANT’S REQUEST FOR DEFAULT; FINDINGS AND
RECOMMENDATION DENYING DEFENDANT’S MOTION FOR DEFAULT JUDGMENT.

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