DeMaria v. NH Judicial Branch Administrative Office of the Courts et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy D. DeMaria
v. 	Case No. 25-cv-428-LM-AJ
New Hampshire Judicial Branch
Administrative Office of the
Courts, et al.1
REPORT AND RECOMMENDATION
Plaintiff Timothy DeMaria filed a Motion for Entry of Default
Judgment, in which he seeks entry of default and a default judgment
against 	Defendants 	pursuant 	to 	Fed. 	R. 	Civ. 	P. 	55. 	Doc. 	No. 	9.
Defendants’ 	counsel 	has 	filed 	an 	appearance 	(Doc. 	No. 	6) 	and
objects 	to 	Plaintiff’s 	Motion. 	Doc. 	No. 	11. 	For 	the 	reasons
stated, 	the 	court 	recommends 	that 	the 	district 	judge 	deny
Plaintiff’s Motion.
“[T]he entry of default judgment in federal court is governed
by 	Federal 	Rule 	of 	Civil 	Procedure 	55.” 	Hoyos 	v. 	Telecorp
Commc’ns, Inc., 488 F.3d 1, 5 (1st Cir. 2007). 	“Rule 55 outlines
a 	two-step 	process.” 	Dmitriev 	v. 	Mann, 	No. 	1:21-CV-40068-NMG,
1 In the Complaint (Doc. No. 1), Plaintiff identifies the
following defendants to this action: New Hampshire Judicial
Branch Administrative Office of the Courts; New Hampshire
Circuit Court, 9th Cir., Manchester (“Manchester Circuit Court”)
Clerk Mary A. Barton; (former) New Hampshire Circuit Court
Administrative Judge David A. King; and (former) Manchester
Circuit Court Administrator Sarah H. Freeman, Esq. 	Plaintiff
sues Clerk Barton, Judge King, and Ms. Freeman in their official
capacities.
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2023 WL 2988644, at *6 (D. Mass. Mar. 10, 2023); see Aho v. Deutsche
Bank 	Nat’l 	Tr. 	Co. 	as 	Tr. 	Certificateholders 	of 	HSI 	Asset
Securitization 	Corp. 	Tr. 	2007-NC1 	Tr., 	Mortg. 	Pass 	Through
Certificates, 	Series 	2007-NC1, 	No. 	23-cv-454-JL-TSM, 	2024 	WL
2939168, 	at 	*2–3 	(D.N.H. 	Apr. 	30, 	2024), 	R 	& 	R 	adopted, 	2024 	WL
3274724 (D.N.H. June 28, 2024).
First, 	under 	Rule 	55(a), 	the 	clerk 	must 	enter 	a 	party’s
default 	when 	the 	moving 	party 	has 	“shown 	by 	affidavit 	or
otherwise,” that the “party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend[.]” 	Fed.
R. 	Civ. 	P. 	55(a). 	“Only 	after 	the 	clerk 	has 	entered 	a 	default
under 	Rule 	55(a), 	may 	a 	default 	judgment 	be 	entered 	under 	Rule
55(b)(1) 	or 	55(b)(2).” 	Aho, 	2024 	WL 	2939168, 	at 	*2. 	The 	Clerk
has not entered default in this case. 	Accordingly, Plaintiff has
not 	shown 	he 	is 	entitled 	to 	entry 	of 	judgment 	under 	Fed. 	R. 	Civ.
P. 55(a).
Moreover, 	entry 	of 	default 	is 	not 	appropriate 	in 	this 	case.
“[I]f 	defendant 	appears 	and 	indicates 	a 	desire 	to 	contest 	the
action, the court can exercise its discretion and refuse to enter
a default.” 	10A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2682 at 18 (4th ed. 2016).
Counsel for Defendants filed an appearance and timely objected to
Plaintiff’s 	Motion. 	At 	this 	stage, 	the 	court 	cannot 	say 	that
Defendants 	lack 	desire 	to 	contest 	the 	action 	and 	that 	entry 	of
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default, 	or 	default 	judgment, 	is 	warranted. 	Niemic 	v. 	Maloney,
409 F. Supp. 2d 32, 37 (D. Mass. 2005) (“Default judgments entered
pursuant 	to 	Fed. 	R. 	Civ. 	P. 	55 	are 	intended 	to 	protect 	diligent
parties whose adversaries are clearly unresponsive.”).
Conclusion
For the reasons stated, the district judge should deny
Plaintiff’s request for entry of default and default judgment.
Doc. No. 9. 	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
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
January 12, 2026
cc: 	Timothy D. DeMaria, pro se
Counsel of Record
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