United States District Court, W.D. Virginia, Harrisonburg Division
KENNETH D. LIGGINS, Plaintiff,
J. MIKE HOLBERT, et al, Defendants.
Michael F. Urbanski, United States District Judge
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.
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.
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). Liggins filed timely objections to the
report and recommendation on February 27, 2017. ECF No. 34.
Subsequently, Liggins filed a motion requesting a hearing
regarding his objections to Judge Hoppe's reports and
recommendations (ECF No. 36).
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.
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.").
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
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 , 509 [(6th
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."
"[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)).
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.
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.
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
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'
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.
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. Accordingly, the court will DENY