Opinion
CIV. 23-00085 DKW-RT
05-03-2023
STACY DUKE AKANA, AND XARBIN INDUSTRIES SP, Plaintiffs, v. RHEA, MARITIME VESSEL, IN REM, HULL NO. HA 9548G; GARY CHEN, DOE DEFENDANTS 1-20, DOE CORPORATIONS 1-20, DOE GOVERNMENT AGENCIES 1-20, DOE PARTNERSHIPS 1-20, OTHER ENTITIES 1-20, IN PERSONAM; Defendants.
FINDINGS AND RECOMMENDATION TO DENY MOTION FOR DEFAULT JUDGMENT
ROM A. TRADER UNITED STATES MAGISTRATE JUDGE
Before the Court are Plaintiffs Stacy Duke Akana (“Akana”) and Xarbin Industries SP's (“Xarbin”) (collectively “Plaintiffs”) Motion for Default Judgment (“Motion” or “Motion for Default Judgment”), filed on April 28, 2023. ECF No. 13. The Court elects to decide this matter without a hearing pursuant to Rule 7.1(c) of the Local Rules of Practice of the United States District Court for the District of Hawaii. After careful review of the Motion, records in this case and applicable law, the Court FINDS that the clerk's entry of default has not been made and thus RECOMMENDS that the district court DENY the Motion for Default Judgment WITHOUT PREJUDICE.
Akana alleges that a copy of the Summons and Complaint was served on Defendant Gary Chen (“Defendant”) and that default judgment is being sought because the Defendant did not timely respond or defend. However, Akana filed the Motion for Default Judgment without first obtaining an entry of default. As such, the Court Clerk has not entered default in this case before the filing the Motion for Default Judgment.
“The Ninth Circuit Court of Appeals has explained Rule 55 as requiring a ‘two-step process' consisting of (1) seeking the clerk's entry of default; and (2) filing a motion for entry of default judgment.” Ramsey v. Hawaii, Civ. No. 20-00215 JMS-KJM, 2020 WL 5754010, at *1 (D. Haw. Sept. 2, 2020), report and recommendation adopted as modified, Civ. No. 20-00215 JMS-KJM, 2020 WL5753965 (D. Haw. Sept. 25, 2020) (citing Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009)). The Motion for Default Judgment is thus premature as an entry of default must precede a motion for default judgment. See Haynes v. R.W. Selby Co. Inc., 457 Fed.Appx. 659, 660 (9th Cir. 2011) (citing Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986)) (Because Plaintiff failed to obtain an entry of default, default judgment should be denied). Accordingly, on this basis alone, the Court RECOMMENDS that the district court DENY WITHOUT PREJUDICE the Motion for Default Judgment.
Furthermore, while Akana, who is proceeding pro se in this matter, may assert claims on behalf of himself, he may not represent Xarbin or assert claims on its behalf. LR81.1(a) & (b). On March 30, 2023, the Court issued an Entering Order to bring this to Akana's attention. ECF No. 11. The Entering Order, in pertinent part, reads as follows:
Upon review of the [ECF 8 ] Amended Complaint, filed 3/7/2023, Plaintiff Stacy Duke Akana (“Plaintiff”) is proceeding pro se in this matter and is authorized to “appear personally on behalf of [himself] only[.]” See, LR81.1(a). In the Amended Complaint, however, Plaintiff asserts claims on behalf of both himself and Xarbin Industries SP. ECF No. 8. The Court CAUTIONS Plaintiff that “[e]ntities other than individuals, including but not limited to corporations, partnerships, limited liability partnerships or corporations, trusts, community associations, and unions, must be represented by an attorney.” LR81.1(b). Accordingly, Plaintiff may not represent Xarbin Industries SP in this action or assert claims on its behalf.
“Pro se litigants shall abide by all local, federal, and other applicable rules and/or statutes.” LR81.1(a). “Sanctions, including but not limited to... dismissal with prejudice, may be imposed for failure to comply with the Local Rules.” Id.ECF No. 11 (emphasis added). Thus, even if the Motion for Default Judgment was properly before the Court, Akana as a pro se litigant would be permitted to request default judgement on behalf of himself only and not on behalf of the entity Xarbin.
IT IS SO FOUND AND RECOMMENDED.