Harleman v. Warden

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 2:24-cv-02176-TMC-GJL 11 Petitioner, v. REPORT AND RECOMMENDATION 12 WARDEN, FDC SEATAC, Noting Date: March 17, 2025 13 Respondent. 14

15 This federal habeas action filed pursuant to 28 U.S.C. § 2241 has been referred to United 16 States Magistrate Judge Grady J. Leupold. Currently before the Court is Petitioner Paul Henri 17 Marie Harleman’s Motion for Default Judgment. Dkt. 11. Because Petitioner mistakenly argues 18 that Respondent failed to file the Return before the applicable deadline expired, the undersigned 19 recommends the Motion be DENIED. 21 A litigant may move for entry of default and default judgment if the opposing party fails 22 to plead or otherwise defend. See Fed. R. Civ. P. 55. It is in the Court’s discretion to grant or 23 deny a motion for default; however, default is disfavored and “whenever it is reasonably 24 1 possible[,] cases should be decided upon their merits.” In re Hammer, 940 F.2d 524, 525 (9th 2 Cir. 1991) (quoting Gregorian v. Izvestia, 871 F.2d 1515, 1523 (9th Cir. 1989) (internal 3 quotation omitted)). The entry of default judgment is a drastic step that a court should decline to 4 take where, as here, the opposing party either properly defends or demonstrates an intent to

5 defend. See generally Wilson v. Moore & Assocs., 564 F.2d 366, 369 (9th Cir. 1977); see also 6 Chevalier v. Sutter Hotel, No. C-07-0401 MMC, 2008 WL 618919, at *1 (N.D. Cal. Mar. 5, 7 2008) (declining to enter default judgment when defendant submitted its responsive pleading 8 eight days beyond the prescribed deadline). 9 In his Motion, Petitioner argues he is entitled to default judgment because Respondent 10 failed to file the Return by the Court imposed deadline. Dkt. 11; see also Dkt. 4 (Order for 11 Service and Return, § 2241 Petition). Petitioner is mistaken. On January 7, 2025, the Court 12 directed Respondent to file a return “[w]ithin 30 days of the date this Order is posted.” Id. As 13 such, the final date for Respondent to file a timely return was February 6, 2025, which is the date 14 the Return was filed. See Dkt. 9. Therefore, Petitioner has failed to show he is entitled to default

15 judgment in this action. 17 For the above stated reasons, the undersigned recommends the Motion for Default 18 Judgment (Dkt. 11) be DENIED. 19 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties 20 shall have fourteen (14) days from service of this report to file written objections. See also Fed. 21 R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of 22 de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of 23 those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda

24 1 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time 2 limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on March 3 17, 2025, as noted in the caption. 4 Dated this 28th day of February, 2025.

5 A 6 7 Grady J. Leupold United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24