McAllister v. Adecco Group N.A. et al
ORDER: (1) DENYING PLAINTIFF'S APPEAL OF THE ORDER DENYING PLAINTIFF'S REQUESTS FOR ENTRY OF DEFAULT 66 ; AND (2) ADOPTING THE FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTIONS FOR DEFAULT JUDGMENT 56 . Signed by CHIEF J UDGE J. MICHAEL SEABRIGHT on 12/29/2016. (afc) ORDER grants plaintiff an extension of time to January 31, 2017 to serve Defendants [Adecco Group N.A.; Trane Supply Co.; Curtis L. Brunk]. Plaintiff need not take any further a ction to effect proper service on Defendant Trane. 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 December 30, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIS C. MCALLISTER,
ADECCO GROUP N.A.; TRANE
SUPPLY CO.; CURTIS L. BRUNK;
CIV. NO. 16-00447 JMS-KJM
ORDER: (1) DENYING
PLAINTIFF’S APPEAL OF THE
ORDER DENYING PLAINTIFF’S
REQUESTS FOR ENTRY OF
DEFAULT; AND (2) ADOPTING
THE FINDINGS AND
RECOMMENDATION TO DENY
PLAINTIFF’S MOTIONS FOR
ORDER: (1) DENYING PLAINTIFF’S APPEAL OF THE ORDER
DENYING PLAINTIFF’S REQUESTS FOR ENTRY OF DEFAULT; AND
(2) ADOPTING THE FINDINGS AND RECOMMENDATION TO DENY
PLAINTIFF’S MOTIONS FOR DEFAULT JUDGMENT
On November 22, 2016, Magistrate Judge Kenneth J. Mansfield
issued an Order denying Plaintiff Willis C. McAllister’s (“Plaintiff”) requests to
enter default against Defendants Adecco Group N.A., Trane Supply Co., Curtis L.
Brunk, and Garrett Mock 1 (collectively, “Defendants”), and Findings and
Recommendation to deny Plaintiff’s motions for default judgment against
Defendants. ECF No. 56. On December 5, 2016, Plaintiff filed a document which
the court construes as both an Appeal of the Order and an Objection to the
Findings and Recommendation. ECF No. 66. Defendants filed Oppositions on
By agreement of the parties, Defendant Mock was dismissed as a party to this action on
December 14, 2016. See ECF No. 77.
December 15 and 21, 2016. ECF Nos. 76, 80. Pursuant to Local Rule 7.2(d), the
court finds this matter suitable for disposition without a hearing.
Any party may appeal to the district court any pretrial nondispositive
matter determined by a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(a); LR 74.1. Such an order may be reversed by the district court judge only
when it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); LR
74.1. The threshold of the “clearly erroneous” test is high and significantly
deferential. “A finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); Matthews v. Chevron Corp., 362 F.3d 1172, 1180
(9th Cir. 2004); Hasegawa v. Hawaii, 2011 WL 6258831, at *1 (D. Haw. Dec. 14,
When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”).
Here, the court finds that Magistrate Judge Mansfield’s
determinations -- that Plaintiff’s service on Defendants was insufficient and
therefore Plaintiff was not entitled to entry of default against Defendants -- were
both factually and legally correct. In short, his order was neither “clearly
erroneous” nor “contrary to law.” Further, after de novo review and for the
reasons set forth by Magistrate Judge Mansfield, the court agrees that Plaintiff may
not obtain default judgment without first obtaining entry of default.
Accordingly, the court DENIES Plaintiff’s Appeal and ADOPTS the
Findings and Recommendation that Plaintiff’s motions for default judgment be
denied. Plaintiff is granted an extension of time to January 31, 2017 to serve
Defendants. The court notes that Defendant Trane has represented that it will
accept “virtual” service of the Complaint on January 3, 2017, without requiring
Plaintiff to file a return of service. See ECF No. 76. In other words, Plaintiff need
not take any further action to effect proper service on Defendant Trane. The
deadline to serve all other remaining Defendants is January 31, 2017. 2
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 29, 2016.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
McAllister v. Adecco Grp. N.A., et al., Civ. No. 16-00447 JMS-KJM, Order: (1) Denying
Plaintiff’s Appeal of the Order Denying Plaintiff’s Requests for Entry of Default; and
(2) Adopting the Findings and Recommendation to Deny Plaintiff’s Motions for Default
The court also notes that Defendant Adecco represents that it intends to seek a
stipulation from the parties to name the correct Adecco entity as the defendant in this action. See
ECF No. 80. Counsel for Defendants Adecco and Brunk indicates that they are authorized to
accept service on behalf of the properly named Adecco entity and Brunk. Id.
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