Brown v. McConkey et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Steven Brown
v. Case No. 25-cv-77-LM-AJ
Mark McConkey, et al.
REPORT AND RECOMMENDATION
Self-represented plaintiff Steven Brown filed a complaint
(Doc. No. 1) against several individuals1 he alleges violated his
constitutional rights in connection with a property dispute in
Ossipee, New Hampshire. Presently before the court for a
recommended disposition are plaintiff’s motions for entry of
default. (Doc. Nos. 14, 18). As explained more fully below,
plaintiff’s motions should be denied.
Legal Standard
As relevant here, Rule 12 of the Federal Rules of Cicil
Procedure require a party to respond to a complaint “within 21
days after being served with the summons and complaint . . . .”
Fed. R. Civ. P. 12(a)(1)(A). When a party fails to timely
respond, “and that failure is shown by affidavit or otherwise,
the clerk must enter the party's default.” Fed. R. Civ. P.
1 The defendants are Ossipee Police Chief Don Babbin,
Selectman Jonathan Smith, Town Administrator and Zoning Officer
Matt Sawyer, and Mark McConkey, a state senator and property
owner.
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55(a). However, “[b]efore a default can be entered, the court
must have . . . jurisdiction over the party against whom the
judgment is sought, which also means that the party must have
been effectively served with process.” Saunders v. First Magnus
Fin. Corp., No. 17-CV-27-JL, 2017 WL 11404636, at *1 (D.N.H. May
26, 2017) (quoting 10A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2682 (4th ed.
2016) (footnotes omitted)).
Discussion
Plaintiff’s complaint was filed on February 20, 2025. In
two filings, he asserts that service was completed on September
8, 2025, and that the defendants’ responsive pleadings were “due
on or before September 29, 2025.” Pltf. Proof of Service (Doc.
No. 15) at 1; Pltf. Repl. (Doc. No. 34). Defendants Babbin,
Sawyer, and Smith filed a motion to dismiss on September 29,
2025 (Doc. No. 23). Therefore, based on plaintiff’s own
calculations in these filings, the defendants timely responded
to the complaint. In earlier filings, however, plaintiff claimed
that service was completed on August 5, 2025, triggering a
response deadline of August 26, 2025. Pltf. Mot. (Doc. No. 14)
at 1; Pltf. Mot. (Doc. No. 18) at 1. Under these calculations,
the defendants’ response would be untimely.
The court finds it unnecessary to untangle this procedural
knot. Regardless of when these defendants’ response was due,
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entering default is unwarranted. In the first instance, the
First Circuit has long held that, in the context of setting
aside a default, that “actions should ordinarily be resolved on
their merits.” Unity Sch. Dist. v. Vaughn Assocs., Inc., No. 15-
CV-155-SM, 2018 WL 1054328, at *2 (D.N.H. Feb. 23, 2018)
(quoting Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989)).
Moreover, the defendants’ motion, which, as noted above, is
timely under one of plaintiff’s own calculations, demonstrates
that they are actively defending against plaintiff’s claims. So,
even if their motion to dismiss was untimely, as plaintiff
contends, the drastic sanction of default would be
inappropriate. See Remexcel Managerial Consultants, Inc. v.
Arlequin, 583 F.3d 45, 51 (1st Cir. 2009) (“The entry of a
default judgment provides a useful remedy when a litigant is
confronted by an obstructionist adversary . . . .”) (quotation
marks and citation omitted); see also, Bisasor v. Donais, No.
23-CV-374-JL-TSM, 2024 WL 2263079, at *1 (D.N.H. Mar. 21, 2024),
report and recommendation adopted, No. 23-CV-374-JL-TSM, 2024 WL
2249783 (D.N.H. May 15, 2024) (declining to enter default
despite arguably untimely response to complaint); Snell v.
Descoteaux, No. 20-cv-11894-JDL, 2022 WL 813831, at *2 (D. Mass.
Mar. 16, 2022) (declining to enter default as a sanction when
defendant's response to complaint was untimely); Sea Salt, LLC
v. TD Bank, NA, No. 20-cv-99-JAW, 2021 WL 454222, at *3 (D. Me.
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Feb. 8, 2021) (same); Lewis v. Kennebec Cnty., No. 16-cv-559-
JAW, 2017 WL 2274953, at *3 (D. Me. May 24, 2017) (same).
Finally, the court notes that in addition to the
conflicting deadlines that the plaintiff has asserted, he has
also indicated differing methods of service that call into
question whether he has properly served the defendants. For
example, in a Proof of Service filed on August 21, 2025 (Doc.
No. 13), plaintiff alleges that a County Sheriff served the
summons and complaint on the Town of Ossipee. But the Town of
Ossipee is not a defendant in this case. He also filed an
invoice (Doc. No. 13-1) indicating in-hand service on the
defendants. But unlike the service on the Town of Ossipee, where
the plaintiff asserts that the summons and complaint were
served, the description of service on the individual defendants
is considerably more vague, describing only the “delivery of
legal documents.” Proof of Service, Exh. A. (Doc. No. 13-1) at
1. Further confusing matters, this document indicates that
service was made on a non-defendant, Susan Simpson. Plaintiff
also subsequently filed a notice of “corrected service” (Doc.
No. 20) in which he states that the original service was made at
Ossipee Town Hall, and that he “supplemented service by using
Certified Mail.” As explained below, neither the Town Hall
service, nor the mail supplement demonstrates sufficient
service.
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In a Proof of Service filed on September 8, 2025 (Doc. No.
15), plaintiff asserts that he served the summons and complaint
by certified mail, return receipt requested, consistent with
Fed. R. Civ. P. 4(e)(1) and N.H. Rev. Stat. Ann. § 510:4, 9.
This document does not describe proper service, as the cited
Federal Rule allows service either in accordance with state law
or by personally delivering the summons and complaint to an
individual defendant, leaving the documents at his home, or to
an agent. Plaintiff references Fed. R. Civ. P. 4(i)(1), which
allows, in part, service by mail. But that provision applies
only to “the United States and its Agencies, Corporations,
Officers or Employees,” so is inapplicable here. The cited New
Hampshire statutes are similarly inapplicable, as § 510:4
applies to non-resident defendants and § 510:9 governs service
by publication.
Given the response by defendants Babbin, Sawyer, and Smith,
the uncertainty surrounding service on defendant McConkey, and
the court’s overarching goal of resolving cases on the merits,
the court cannot conclude that that the defendants were
“effectively served with process.” Saunders, 2017 WL 11404636,
at *1. Accordingly, default would be inappropriate at this
juncture.2
2 The court makes no conclusive finding as to the adequacy
of service. The confusion and potential inadequacy of service
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Conclusion
Based on the foregoing, plaintiff’s motions for default
(Doc. Nos. 14 and 18) should be denied. If the district judge
adopts this recommendation, plaintiff’s motion for a status
conference (Doc. No. 19), which is based on plaintiff’s claim
that the defendants should be defaulted, should also be denied.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file any objections within the specified time waives the right
to appeal the district court's Order. See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 18, 2025
cc: Steven Brown, pro se
Counsel of Record
are described here only in the context of the requirement for
default.
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