Unpublished Disposition, 848 F.2d 1242 (9th Cir. 1987)

MEMORANDUM^** 

Curtis Hughes appeals the district court's refusal to impose a default judgment against the Port of Seattle for failure to file a timely answer or response to his discovery requests. He also appeals the dismissal of his 42 U.S.C. § 1983 action against the Port. These appeals are consolidated before us. We affirm the district court.

FACTS

On the evening of May 16, 1985, Hughes was in a public park owned by the Port of Seattle. Two Port police officers approached Hughes, and each photographed him. Hughes allegedly objected both before and after the officers photographed him. A third officer then photographed Hughes again.

The following day Hughes went to the Port's offices to complain about the incident and to obtain the photographs. Port officials told Hughes that the officers took the photographs to identify problems concerning use of the park. Port officials later informed Hughes that the pictures had been destroyed because they did not expose properly.

On October 27, 1986, Hughes filed this action pro se for monetary damages under 42 U.S.C. § 1983. Hughes alleged that by taking his photograph without his permission, the Port violated his fourth amendment right to "security" and his right to due process under the fifth and fourteenth amendments. He also alleged state law tort claims for a violation of his right to privacy and defamation.

Hughes served the Port with the summons and complaint on November 25, 1986. On December 1, 1986, Hughes served discovery requests upon the Port. On December 19, the Port entered a formal notice of appearance. On December 22, Hughes mailed a copy of a motion for entry of default to the Port and filed the same with the district court. The motion was based on the Port's failure to file an answer within twenty days, as required by Federal Rule of Civil Procedure 12(a). No default was entered. On December 30, 1986, the Port filed its answer and counterclaim against Hughes.

On January 5, 1987, Hughes filed a motion for an order compelling discovery pursuant to his request made in December. On January 12, the court denied Hughes' motion for failure to comply with Local Civil Rules 37(g) and (h), which require a certificate of compliance indicating that the parties have met and conferred prior to making the motion to compel discovery. Hughes then filed a motion for reconsideration.

On January 8 Hughes filed a motion for a judgment by default, on two grounds: (1) the Port filed a late answer to Hughes' complaint, and (2) the Port failed to respond to Hughes' discovery requests.

On January 20, the Port filed a motion to dismiss for failure to state a claim. On January 30, the court denied Hughes' motion for a default judgment and denied his motion for reconsideration of its decision regarding the discovery motion. On February 5, Hughes moved for reconsideration of the court's ruling denying his motion for default. Before the court ruled on that motion, Hughes filed a notice of appeal from the court's orders denying his motions to compel discovery and for default judgment.

On February 26th, the district court granted the Port's motion to dismiss. Hughes timely filed a notice of appeal from the court's dismissal.

JURISDICTION

This court must first determine whether it has jurisdiction over both of Hughes' appeals. While Hughes timely appealed the district court's dismissal of his action (87-3650), he prematurely appealed the court's denial of his motions for a default judgment and an order to compel discovery (87-3627). Nonetheless, this court has jurisdiction over both appeals.

For this court to have jurisdiction, an appellant must appeal from either a final judgment or an appealable interlocutory order. 28 U.S.C. §§ 1291, 1292. Generally, a prematurely filed notice of appeal does not confer jurisdiction on this court. Anderson v. Allstate Ins. Co., 630 F.2d 677, 680 (9th Cir. 1980). However, when subsequent events made the judgment final, the premature notice of appeal may be effective. Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548, 554 (9th Cir. 1986) (interlocutory order may be treated as a final order when that portion of the case that remained in the district court has subsequently been terminated), cert. denied, 108 S. Ct. 83 (1987).

Although Hughes prematurely filed his notice of appeal in 87-3627, it became effective because of the court's subsequent dismissal of his action. Therefore, this court has jurisdiction to hear both appeals.

STANDARD OF REVIEW

This court reviews for abuse of discretion the denial of a motion for default judgment under Federal Rule of Civil Procedure 55(b). Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). It also reviews for abuse of discretion the denial of sanctions under Federal Rule of Civil Procedure 37 for failure to make discovery. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985). This court reviews de novo the dismissal for failure to state a claim upon which relief may be granted. Grimes v. Commissioner of Internal Revenue, 806 F.2d 1451, 1453 (9th Cir. 1986).

DISCUSSION

A. District Court's Denial of Default Judgment for Port's Untimely Answer

Hughes contends the district court abused its discretion by refusing to award a default judgment in his favor and allowing the Port to file an untimely answer and counterclaim. We find no such abuse of discretion.

Federal Rule of Civil Procedure 12(a) requires a defendant to serve its answer within twenty days after service of the complaint and summons on it. The Port failed to conform to the rule by serving its answer and counterclaim more than twenty days after service of Hughes' complaint and summons. Federal Rule of Civil Procedure 55(a) provides that when a party has failed to plead, the clerk of the court shall enter a default. Although Hughes requested the clerk to enter a default, and supported his request by affidavit, the clerk did not do so. Rule 55(a) is not discretionary; it states that the clerk "shall" enter a default when a party against whom relief is sought fails to plead. Therefore, the clerk should have entered a default when Hughes filed his request and supporting affidavit.

One consequence of a default entry is that the defaulting party, pursuant to Federal Rule of Civil Procedure 55(c), "must request that the default be 'excused' and secure leave [of the court] to answer before his responsive pleading will be recognized." C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2692 (1983). The party must seek leave even if there has not been a formal entry of default once the party is technically in default. Id. Thus, Hughes is also correct that the Port should have sought leave to file its answer even though the clerk failed to enter a default.

Nevertheless, the clerk's failure to enter a default is not significant to the outcome of this case. Courts have been extremely lenient in treating other pleadings as requests for leave to set aside the default. Id.; see, e.g., Meehen v. Snow, 652 F.2d 274, 276 (2d Cir. 1981) (opposition to motion for default judgment treated as motion to set aside entry of default despite absence of a formal motion under Federal Rule Civil Procedure 55(c)). The district court in this case made no objection to the Port's filing of its answer and accepted the pleading. Also, as discussed below, the district court denied Hughes' motion for a default judgment. We find that in so doing, the court implicitly set aside the default.

Hughes also appeals the district court's denial of his motion for a default judgment. Federal Rule of Civil Procedure 55(b) (2) requires that if the defendant has entered an appearance in the action, the plaintiff must provide the defendant with written notice of the application for default judgment at least three days prior to the hearing on the application. In the Western District of Washington, the plaintiff must provide five days notice. Local Civil Rule 55(a). Hughes did not provide such notice to the Port. Shortly after Hughes moved for default judgment, the Port filed its answer. The district court did not abuse its discretion in denying the motion for a default judgment.

B. District Court's Denial of Default Judgment for Noncompliance with Discovery Requests

The district court refused to grant Hughes' motion for an order compelling discovery. It did so after finding that Hughes had not complied with local rules requiring that he file a certificate of compliance indicating that the parties have met and conferred about the motion. Local Civil Rules 37(g), (h).

Hughes contends the district court erred by failing to enter a default judgment against the Port, pursuant to Federal Rule of Civil Procedure 37(b) (2) (C), as a sanction for the Port's alleged noncompliance with discovery rules. This contention lacks merit.

Whether to impose sanctions under Rule 37 is left to the sound discretion of the district judge. United States v. National Medical Enter., Inc., 792 F.2d 906, 910-11 (9th Cir. 1986). Although a court may impose sanctions in the absence of a discovery order, Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981), the court's discretion to impose the drastic sanction of default is limited to situations where the party's noncompliance is due to willfulness, fault, or bad faith. Id.

Nothing in the record justifies a finding by this court that the district court "committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Fjelstad, 762 F.2d at 1337 (citations omitted). The Port responded to Hughes' discovery request, albeit late. Although the Port responded only with objections, nothing in the record shows the Port acted in bad faith or that it attempted to conceal or fabricate evidence. See Sigliano, 642 F.2d at 310. Therefore, the district court did not abuse its discretion in denying Hughes' request for a default judgment.

C. District Court's Dismissal for Failure to State a Claim

Hughes contends he stated a claim under 42 U.S.C. § 1983 in that the Port allegedly violated his fourth, fifth, and fourteenth amendment rights.

Hughes has not alleged a constitutional claim under the fourth amendment. The Supreme Court has held that " [t]he touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation in privacy.' " California v. Ciraolo, 106 S. Ct. 1809, 1811 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)). In Ciraolo, the Court held that the state could take aerial photographs of the fenced-in backyard of an individual without violating the fourth amendment. In so doing, the court reaffirmed its earlier holding in Katz that, " [w]hat a person knowingly exposes to the public ... is not a subject of fourth amendment protection." Id. at 1812. Thus, Hughes did not have a reasonable expectation of privacy when he was sitting in the Port's park. See W. Prosser & W. Keeton, Torts, 855-56 (5th ed.1984).

Hughes also fails to state a claim for a violation of due process under the fifth or fourteenth amendments. Although the actions by the Port's officers were disagreeable to Hughes, they did not create a cause of action under section 1983. See Caroll by Caroll v. Parks, 755 F.2d 1455, 1456-57 (11th Cir. 1985) (due process does not protect individual from display and distribution of publicly taken photograph despite the photograph's offensive nature). Because Hughes has not stated a claim for deprivation of a constitutionally protected right under the fourth amendment, there is no process to which he was entitled.

The district court did not err by dismissing Hughes' action for failure to state a claim under 42 U.S.C. § 1983.

Hughes also claims the Port defamed him and invaded his right to privacy. These are pendant state claims arising in tort, over which we decline to exercise jurisdiction in the absence of a federal claim.

SANCTION FOR APPEAL

The Port states that Hughes' appeal is frivolous, and requests an award of attorney's fees and double costs as a sanction under Federal Rule of Appellate Procedure 38. It is within this court's discretion to impose sanctions under Rule 38. We decline to do so here.

CONCLUSION

This district court's judgment is AFFIRMED. The Port's motion for sanctions is DENIED.