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Chung v. Vistana Vacation Ownership, Inc.

United States District Court, D. Hawaii

March 8, 2019

KEICY CHUNG, Plaintiff,


          Leslie E. Kobayashi United States District Judge

         On January 24, 2019, the magistrate judge filed his Findings and Recommendation to Deny Plaintiff's Motion for Default Judgment (“F&R”). [Dkt. no. 35.] On January 30, 2019, pro se Plaintiff Keicy Chung (“Plaintiff”) filed a document titled “Plaintiff's Reply in Support of Plaintiff's Motion for Default Judgment.” [Dkt. no. 36.] The substance of Plaintiff's document has been construed as Plaintiff's Objections to the F&R (“Objections”). [EO: Court Order Construing Pltf.'s January 30, 2019 Filing as Objections to the Magistrate Judge's Findings and Recommendation, Filed January 24, 2019, filed 2/6/19 (dkt. no. 40).] On February 13, 2019, Defendants Vistana Vacation Ownership, Inc. and Starwood Hotels & Resorts Worldwide, LLC (“Defendants”) filed their response to Plaintiff's Objections. [Dkt. no. 45.] The Court has considered the Objections as a non-hearing matter pursuant to Rule LR7.2(e) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). Plaintiff's Objections are hereby denied, and the F&R is adopted, for the reasons set forth below.


         Plaintiff filed his complaint on November 29, 2018 (“Complaint”) alleging diversity jurisdiction. [Dkt. no. 1.] Defendants were both served with the Summons and Complaint on November 30, 2018. [Dkt. nos. 6, 7.] On December 21, 2018, Defendants electronically filed their Motion to Dismiss Complaint (“Motion to Dismiss”), and certified that a copy of the Motion to Dismiss had been served upon Plaintiff via First-Class Mail at Plaintiff's last known address. [Dkt. nos. 14 (Motion to Dismiss), 14-2 (certificate of service).] Due to a clerical error however, Defendants did not mail out Plaintiff's copy of the Motion to Dismiss on December 21, 2018, and instead mailed it on December 26, 2018. See Amended Certificate of Service, filed 1/17/19 (dkt. no. 30); Defs.' Opp. to Motion for Default Judgment, filed 1/17/19 (dkt. no. 28), Decl. of Nicholas R. Monlux in Supp. of Opp. at ¶¶ 3-4.

         On January 3, 2019, Plaintiff filed his Motion for Default Judgment (“Default Motion”), without first obtaining entry of default. [Dkt. no. 19.] The magistrate judge issued his recommendation to deny Plaintiff's Default Motion as premature because: “Plaintiff has not requested an entry of default, and default has not been entered.” [F&R at 2 (citing Brooks v. United States, 29 F.Supp.2d 613, 618 (N.D. Cal. 1997), aff'd, 162 F.3d 1167 (9th Cir. 1998)); Fed.R.Civ.P. 55(a)).] After the magistrate judge issued his F&R, Plaintiff filed his “Request for Entry of Default Against Defendants” on January 30, 2019 (“Request”). [Dkt. no. 37.] On February 6, 2019, the magistrate judge denied the Request, stating that “Defendants timely defended with their [14] Motion to Dismiss Complaint on 12/21/18. Although service of the motion was not timely, the delay is not a failure to plead and did not prejudice Plaintiff.” [Minutes, dkt. no. 41.]

         In the instant Objections, Plaintiff argues the magistrate judge erred in his recommendation because: 1) even if Plaintiff had requested an entry of default, it could not have been made because Defendants falsely stated when the Motion to Dismiss had been served upon Plaintiff; 2) Defendants failed to respond to Plaintiff's Summons and Complaint because the Motion to Dismiss was not timely served on Plaintiff in accordance with Fed.R.Civ.P. 5 and 12; and 3) the factors set forth in Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986), weigh in favor of this Court granting Plaintiff's Default Motion.


         This Court reviews a magistrate judge's findings and recommendations under the following standard:

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.”).
Under a de novo standard, this Court reviews “the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not hold a de novo hearing; however, it is the court's obligation to arrive at its own independent conclusion about those portions of the magistrate judge's findings or recommendation to which a party objects. United States v. Remsing, 874 F.2d 614, 616 (9th Cir. 1989).

Muegge v. Aqua Hotels & Resorts, Inc., Civil 09-00614 LEK-BMK, 2015 WL 4041313, at *2 (D. Hawai`i June 30, 2015) (alteration in Muegge) (some citations omitted).


         I. Motion for ...

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