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Liggins v. Holbert

United States District Court, W.D. Virginia, Harrisonburg Division

April 11, 2017

KENNETH D. LIGGINS, Plaintiff,
v.
J. MIKE HOLBERT, et al, Defendants.

          MEMORANDUM OPINION

          Michael F. Urbanski, United States District Judge

         Pro se plaintiff Kenneth D. Liggins brings this action alleging civil rights violations under 42 U.S.C. §§ 1983 and 1985(3). He names as defendants J. Mike Holbert, Chairman of the Clarke County Board of Supervisors; Keith R. Dalton, Town Manager for the Town of Berryville; the Clarke County Board of Supervisors; and the Town of Berryville (collectively, "defendants"). ECF No. 1, at 1. Defendants brought a motion to dismiss Liggins's Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 5. In response, Liggins brought two motions for default judgment and a related motion for hearing. ECF Nos. 9, 10, 12. These motions were referred to United States Magistrate Judge Joel C. Hoppe for report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B).[1]

         In his first report and recommendation, issued on October 26, 2016, Judge Hoppe addressed Liggins's claim that defendants did not timely serve him with their motion to dismiss, filed on September 30, 2016. ECF No. 15, at 1-2. Judge Hoppe recommended denying Liggins's motions for default judgment and for a hearing on two grounds. First, the Clerk of the Court had not yet entered defendants' default. Id. at 2. Second, defendants' motion to dismiss was timely filed and, "based on the affidavits of counsel for Defendants, it appears that they took reasonable and customary steps to effect service of the motion to dismiss and brief in support on Liggins." Id. at 3. Liggins filed timely objections to the report and recommendation on November 7, 2016. ECF No. 17.[2]

         In his second report and recommendation, issued on February 8, 2017, Judge Hoppe recommended granting defendants' motion to dismiss. ECF No. 33, at 12. Judge Hoppe found that Liggins failed to state a claim for which relief can be granted, and accordingly recommended that his complaint be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).[3] Liggins filed timely objections to the report and recommendation on February 27, 2017.[4] ECF No. 34. Subsequently, Liggins filed a motion requesting a hearing regarding his objections to Judge Hoppe's reports and recommendations (ECF No. 36).

         For the reasons set forth below, the court will ADOPT both reports and recommendations to the extent consistent with this opinion (ECF Nos. 15, 33), GRANT defendants' motion to dismiss (ECF No. 5), and DENY Liggins's motions (ECF Nos. 9, 10, 12, 36). The court will address Liggins's motions before addressing defendants' motion to dismiss.

         I.

         Rule 72(b) of the Federal Rules of Civil Procedure permits a party to "serve and file specific, written objections" to a magistrate judge's proposed findings and recommendations within fourteen days of being served with a copy of the report. See also 28 U.S.C. § 636(b)(1). The Fourth Circuit has held that an objecting party must do so "with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007), cert denied. 127 S.Ct. 3032 (2007).

To conclude otherwise would defeat the purpose of requiring objections. We would be permitting a party to appeal any issue that was before the magistrate judge, regardless of the nature and scope of objections made to the magistrate judge's report. Either the district court would then have to review every issue in the magistrate judge's proposed findings and recommendations or courts of appeals would be required to review issues that the district court never considered. In either case, judicial resources would be wasted and the district court's effectiveness based on help from magistrate judges would be undermined.

Id. The district court must determine de novo any portion of the magistrate judge's report and recommendation to which a proper objection has been made. "The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. § 636(b)(1). "General objections that merely reiterate arguments presented to the magistrate judge lack the specificity required under Rule 72, and have the same effect as a failure to object, or as a waiver of such objection." Moon v. BWX Techs.. Inc., 742 F.Supp.2d 827, 829 (W.D. Va. 2010) (citing Veney v. Astrue, 539 F.Supp.2d 841, 845 (W.D. Va. 2008)), affd, 498 F.App'x 268 (4th Ck 2012); see also Thomas v. Arn, 474 U.S. 140, 154 (1985(3)) ("[T]he statute does not require the judge to review an issue de novo if no objections are filed.").

         Further, objections that only repeat arguments raised before the magistrate judge are considered general objections to the entirety of the report and recommendation. See Veney, 539 F.Supp.2d at 845. As the court noted in Veney:

Allowing a litigant to obtain de novo review of her entire case by merely reformatting an earlier brief as an objection "mak[es] the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act." Howard [v. Sec'y of Health & Human Servs.], 932 F.2d [505], 509 [(6th Ck. 1991)].

539 F.Supp.2d at 846. A plaintiff who reiterates his previously raised arguments will not be given "the second bite at the apple []he seeks." Id. Instead, his re-filed brief will be treated as a general objection, which has the same effect as a failure to object. Id. II. Under Rule 12(a)(1) (A)(ii) of the Federal Rules of Civil procedure, a defendant must serve an answer within twenty-one days of being served with the plaintiffs complaint. The answer is served on a person by "mailing it to the person's last known address-in which event service is complete upon mailing." Fed.R.Civ.P. 5. "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." Fed.R.Civ.P. 55(a). Once the clerk enters the party's default, and unless "the plaintiffs claim is for a sum certain or a sum that can be made certain by computation, " the other party "must apply to the court for a default judgment." Fed.R.Civ.P. 55(b).

         However, "[p]rior to obtaining a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of default as provided by Rule 55(a)." 10A Charles Allen Wright et al, Federal Practice and Procedure § 2682 (4th ed. 2016); see ECF No. 15, at 2. Federal courts have recognized that "the clear weight of authority holds that a party must seek entry of default by the clerk before it can move the court for default judgment." Rowley v. Morant, 276 F.R.D. 669, 670 (D.N.M. 2011); accord Tweedy v. RCAM Title Loans, LLC, 611 F.Supp.2d 603, 605 (W.D. Va. 2009) ("After the entry of default, the non-defaulting party may move the court for 'default judgment' under Federal Rule of Civil Procedure 55(b)." (emphasis added)).

         III.

         Liggins filed two motions for default judgment (each containing the same allegations), ECF Nos. 9, 12, and a motion for hearing on the motions for default judgment, ECF No. 10. "Liggins contends that the Defendants did not timely serve on him their motion to dismiss. . . . Liggins then asserts that Defendants are in default, and default judgment should be entered against them." ECF No. 15, at 2. Judge Hoppe disagreed, and found that defendants are not in default and recommended that the court deny Liggins's motions accordingly. Id. at 3. Finally, because the motions could be decided based on the parties' filings, Judge Hoppe concluded that a hearing was not necessary. Id.

         Liggins objects to Judge Hoppe's report and recommendation, but largely reiterates the arguments he previously made to the magistrate judge. See generally ECF Nos. 9, 12, 17. Those objections that fail to identify specific errors in the report and recommendation are properly construed as general objections that do not warrant de novo review. See Veney, 539 F.Supp.2d at 844-46. Liggins also concedes that he ultimately received defendants' motion to dismiss, though maintains that this copy, received October 27, 2016, was the only copy he received. ECF No. 17, at 2.

         Flis objections may not be entirely disregarded, however. Construing Liggins's objections liberally, he raises several new, specific objections to Judge Hoppe's findings that the court must consider: (1) that his motion is not premature; (2) that even if defendants took reasonable steps to effect service of the motion to dismiss on him, they can nevertheless be held in default; and (3) that he has been prejudiced because "the Court is acting as [l]egal [c]ounsel on behalf of the Defendants and it's [sic] counsel." ECF No. 17, at 5. The court will address each in turn.

         Judge Hoppe found Liggins's motions to be premature because the clerk had not yet entered default against defendants. ECF No. 15, at 2. Ordinarily, a motion for default judgment must come after the entry of default. See Tweedy, 611 F.Supp.2d at 605. But a plaintiff proceeding pro se is held to "less stringent standards" than plaintiffs with counsel, and the court must construe his claims liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In the Second Circuit, "courts have excused the failure to obtain entry of default prior to an application for default judgment, and have instead included an order for entry of default with a decision on the merits of the application for default judgment." In re Suprema Specialties. Inc., 330 B.R. 40, 47 (S.D.N.Y. 2005). Suprema Specialties comports with the less stringent standards the Fourth Circuit affords plaintiffs proceeding pro se. With these principles in mind, it is reasonable to read Liggins's motions for default judgment as requesting the clerk to enter defendants' default.

         Nevertheless, Liggins's motions for default judgment must fail because, contrary to his contention, defense counsel does not have "the sole responsibility to make sure that the plaintiff Liggins had received a copy of their motion to dismiss." ECF No. 17, at 5. There are two requirements for entry of default under Rule 55 of the Federal Rules of Civil Procedure: (1) that the party "has failed to plead or otherwise defend"; and (2) "that failure is shown by affidavit or otherwise." Liggins attempts to show defendants' failure to plead by submitting an affidavit attesting that he had not received defendants' motion to dismiss before the filing deadline. Even if true, defendants pled properly by filing their motion to dismiss within the deadline and "mailing it to [Liggins's] last known address-in which event service is complete upon mailing." Fed.R.Civ.P. 5; see ECF No. 11 (providing affidavits of defense counsel and members of defense counsel's law firm attesting that the motion to dismiss was properly mailed to Liggins). Liggins's motions for default judgment cannot be granted simply because Liggins contends, without more, that he never received filings which he was entitled to receive by a particular date.

         Liggins has not made the requisite showing under Rule 55 of die Federal Rules of Civil Procedure to warrant entry of default or default judgment. The court therefore need not addtess Liggins's argument that he has been prejudiced by his failure to receive a copy of defendants' motion to dismiss.[5] Accordingly, the court will DENY ...


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