Marlow et al v. Hotchkiss et al

Filing 24

ORDER DENYING MOTIONS FOR DEFAULT JUDGMENT. Plaintiffs Motions for Default Judgment ECF Nos. 11 , 12 , 13 , and 21 are DENIED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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MARK MARLOW and NANCY
MARLOW, husband and wife,

NO: 2:15-CV-0131-TOR

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Plaintiffs,
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ORDER DENYING MOTIONS FOR
DEFAULT JUDGMENT

v.
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JOHN HOTCHKISS, in his individual
capacity; STEVEN M. CLEM, in his
individual capacity; ANDREW L.
KOTTKAMP, in his individual
capacity; KAREN M. URELIUS, in
her individual capacity; GLEN A. DE
VREIS, in his individual capacity;
JERRY J. GREGORY, in his
individual capacity; RAMON PEREZ,
in his individual capacity; ANTHONY
O. WRIGHT, in his individual
capacity; ERIC PENTICO, in his
individual capacity; GARY GRAFF, in
his individual capacity; BRUCE A.
ESTOK, in his individual capacity; F.
DALE BAMBRICK, in his individual
capacity; MARK D. KULASS, in his
individual capacity; DALE L.
SNYDER, in his individual capacity;
KEN STANTON, in his individual
capacity; STEVEN JENKINS, in his
ORDER DENYING MOTIONS FOR DEFAULT JUDGMENT ~ 1

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individual capacity; DOES 1 through
10, inclusively in their individual
capacity.

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Defendants.

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BEFORE THE COURT are Plaintiffs’ Motions for Default Judgments (ECF

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Nos. 11; 12; 13; 21). These matters were submitted without oral argument. The

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Court has reviewed the record and files herein, and is fully informed.

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BACKGROUND
Plaintiffs filed a complaint on May 14, 2015, alleging a number of causes of
action against Defendants relating to real property in Douglas County,

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Washington. ECF No. 1. On May 26, 2015, Plaintiffs filed proof of service

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indicating that Defendants Kottkamp, Snyder, De Vreis, Hotchkiss, Stanton,

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Kulaas, Clem, and Jenkins were served with a copy of a summons and complaint

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on May 15, 2015. ECF No. 2 (and attachments). Subsequently, Plaintiffs filed

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proof of service indicating Defendants Pentico and Urelius were served on May 22,

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2015 (ECF No. 8-1; 8-2), Defendant Perez was served on May 27, 2015 (ECF No.

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8-3); and Defendant Bambrick was served on June 16, 2015 (ECF No. 8).

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On May 28, 2015, a special notice of appearance was filed on behalf of

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Defendants Hotchkiss, Clem, Kottkamp, De Vreis, Perez, Kulaas, Snyder, Stanton,

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and Jenkins by private counsel Heather C. Yakely. ECF No. 3. These Defendants

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filed their answer to Plaintiffs’ complaint on July 7, 2015. ECF No. 9.

ORDER DENYING MOTIONS FOR DEFAULT JUDGMENT ~ 2

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On June 10, 2015, a notice of appearance was filed on behalf of Defendants

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Pentico and Graff by Carl P. Warring, an Assistant Attorney General for the State

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of Washington. ECF No. 4. Defendants Pentico and Graff filed an answer to

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Plaintiffs’ complaint on June 12, 2015. ECF No. 5.

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On July 8, 2015, notice of appearance was filed on behalf of the remaining

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Defendants Urelius, Gregory, Wright, Estok, and Bambrick by Vanessa R.

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Waldref, an Assistant United States Attorney. ECF No. 10. These Defendants

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have not yet filed an answer to the complaint.

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Plaintiffs filed three motions for default judgment on July 10, 2015. The

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first motion requests default judgment against Defendant Urelius. ECF No. 11.

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The second requests default against Defendant Bambrick. ECF No. 12. The third

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requests default judgment against all Defendants based upon Plaintiffs’ argument

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that “there is no document in the instant record that squarely faces and addresses”

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various contentions the Marlows make in their complaint. ECF No. 13. The

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Plaintiffs filed a fourth motion for default judgment on July 30, 2015, alleging that

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“the named Defendants have failed, refused, or neglected to TIMELY file and

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serve any court documents that squarely faced any of the issues present in their

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original ACTION-AT-LAW.” ECF No. 21.

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//

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//

ORDER DENYING MOTIONS FOR DEFAULT JUDGMENT ~ 3

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DISCUSSION

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In general, a party must file a responsive pleading within twenty-one days

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after being served with a summons and complaint. Fed. R. Civ. P. 12(a)(1)(A)(i).

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If the United States, a United States agency, or a United States officer or employee

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is sued in an official capacity, a responsive pleading must be filed within sixty days

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of service. Fed. R. Civ. P. 12(a)(2).

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Federal Rule of Civil Procedure 55 governs the two-step process for

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obtaining default judgment against parties who fail to respond. As explained in the

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Court’s local rules, obtaining a default judgment is a two-step process: “(1) entry

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of default and (2) entry of default judgment. A party must first file a motion for

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entry of default, obtain a Clerk’s Order of Default, and then file a separate motion

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for default judgment.” L.R. 55. 1
The first step is to request the clerk of court to enter default against a party.

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Under Federal Rule 55(a), “[w]hen a party against whom a judgment for

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affirmative relief is sought has failed to plead or otherwise defend, and that failure

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The local rules are available on the website for the District Court for the Eastern

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District of Washington (http://www.waed.uscourts.gov). Although Plaintiffs

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proceed pro se they are expected to know and abide by the rules detailed therein, as

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well as the rules contained in the Federal Rules of Civil Procedure.

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is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed.

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R. Civ. P. 55(a). As articulated by the local rules, this process occurs “without

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action by the Judge.” L.R. 55.1(a). First, the party seeking default must provide

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written notice of the intention to move for entry of default to counsel for the party

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against whom default is sought and at least fourteen days prior to the filing of the

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motion for entry of default. L.R. 55.1(a)(1). After providing this notice, the party

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seeking default must then file an affidavit with the clerk showing: “(a) that proper

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notice of the intention to seek an entry of default has been given; and (b) that the

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party against whom default is sought was properly served with the summons and

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complaint in a manner authorized by FED. R. CIV. P. 4.” L.R. 55.1(a)(2).

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Only after default has been entered against a party by the clerk may a motion

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for default judgment be filed for consideration by the Court. L.R. 55.1(b); see also

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Fed. R. Civ. P. 55(b). A motion for default judgment must contain an affidavit as

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required by local rule 55.1(b)(1).

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Plaintiffs have failed to follow the proper procedure for entry of default and

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default judgment. First, Plaintiffs have immediately moved the Court for default

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judgment without first seeking entry of default from the clerk. Second, Plaintiffs

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failed to provide the required fourteen-day written notice. Third, Plaintiffs have

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not provided the required affidavit showing proper service. In fact, at this point,

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ORDER DENYING MOTIONS FOR DEFAULT JUDGMENT ~ 5

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Plaintiffs have still not filed proof of service for Defendants Gregory, Wright,

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Graff, or Estok.

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Finally, Defendants Hotchkiss, Clem, Kottkamp, De Vreis, Perez, Kulaas,

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Snyder, Stanton, Jenkins, Pentico and Graff have all filed responsive pleadings and

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default cannot now be entered against them. See ECF Nos. 5; 9. Plaintiffs object

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to the sufficiency of these answers. See ECF Nos. 13; 21. However, an answer

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must merely “(A) state in short and plain terms [the party’s] defenses to each claim

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asserted against it; and (B) admit or deny the allegations asserted against it by an

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opposing party.” Fed. R. Civ. P. 8(b)(1). The filed answers do so, and are

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sufficient responsive pleadings. See ECF Nos. 5; 9.
Plaintiffs also object to the notices of appearances filed by the Washington

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State Attorney General and the United States Attorney on behalf of Defendants

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who are, respectively, state and federal employees. See ECF No. 13; 18.

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Specifically, the Plaintiffs object to these public advocates representing “street

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people who were sued in their individual capacity simply because they injured the

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Marlows with their actions that were not within the scope of their office or

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employment.” ECF No. 13 at 3; see also 18 at 2.

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Plaintiffs’ assertion is insufficient to establish that the Defendants were not

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acting in their official capacities. “Whether a Government employee was acting

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within the scope of his employment is a mixed question of law and fact” to be

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determined after further factual development of the record. See Meridian Int'l

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Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991). While the facts

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are insufficiently developed to fully determine the matter at this time, it appears

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from the Plaintiffs’ factual allegations that their claims arise from disputes about

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zoning and permitting within Douglas County. See ECF No. 1-2 at 5–8. Zoning

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and permitting are traditional governmental functions. See, e.g., Larkin v.

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Grendel’s Den, Inc., 459 U.S. 116, 121 (1982). Because Plaintiffs’ allegations

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arise out of a dispute involving the performance of governmental functions, the

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state and federal employee Defendants may be entitled to representation by the

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Washington State Attorney General and the United States Attorney, respectively.

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See 28 U.S.C. § 2679(c), (d); RCW 4.92.060, .070.

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ACCORDINGLY, IT IS HEREBY ORDERED

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Plaintiffs’ Motions for Default Judgment (ECF Nos. 11; 12; 13; 21) are
DENIED.
The District Court Executive is hereby directed to enter this Order and

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furnish copies to Plaintiffs and counsel.

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DATED August 11, 2015.

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THOMAS O. RICE
United States District Judge

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