Fortune v. NH Department of Safety et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
WILLIAM E. FORTUNE
v. 	Case No. 25-cv-00377-SM-TSM
NH DEPARTMENT OF SAFETY, ET AL.
REPORT AND RECOMMENDATION
ON PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
Self-represented Plaintiff, William E. Fortune, filed this suit against the Department of
Safety, DMV, Administration, Financial Responsibility Division (“DMV”); New Hampshire
Governor Kelly Ayotte; State Farm Mutual;1 and the National Service Bureau, Inc (“NSB”),
seeking, among other things, to restore his driver’s license and registration. Doc. No. 1. Plaintiff
claims that although he served Defendants, none of the Defendants timely responded to the lawsuit.
Doc. Nos. 9, 12, and 15. 	Accordingly, Plaintiff filed motions for default judgment against
Defendants.2 Id. For the reasons that follow, the court recommends that the district judge deny
Plaintiff’s motions (Doc. Nos. 9, 12, and 15).
1 Plaintiff originally named Farmers Insurance as a defendant. On November 20, 2025, the district
judge approved this court’s report and recommendation granting Plaintiff’s motion to amend (Doc.
No. 3), removing Farmers and adding State Farm as a defendant (Doc. Nos. 4, 5).
2 Plaintiff submitted letters to the clerk, which the clerk’s office docketed as Motions for Default
Judgment. Doc. No. 9, 15. These pleadings do not comply with LR 7.1, which requires, among
other things, that “[a]ll motions must contain the word ‘motion’ in the title.” LR 7.1(a). Plaintiff
also filed a “Motion,” wherein he “requests that this Court enter Judgment according to Federal
Law & Court Rules” against the DMV, Governor Ayotte, and NSB. Doc. No. 12.
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BACKGROUND
The Lawsuit
On July 11, 2024, Plaintiff was involved in an automobile accident, which resulted in
damage. Doc. No. 1 at ¶ 10(B). On or around February 5, 2025, NSB sent Plaintiff a Notice of
Insurance Claim on behalf of NSB’s client, State Farm. Id. at ¶ 10(C). The Notice demanded that
Plaintiff pay $15,016.92, which represented the amount State Farm paid on behalf of its insured.
Id.
On or around February 14, 2025, NSB sent a copy of the Notice of Insurance Claim, along
with a letter to the DMV requesting the suspension of Plaintiff’s driver’s license and vehicle
registration. Id. at ¶ 10(D). In response, the DMV sent Plaintiff a “Notice of Suspension,” which
notified Plaintiff that his operating privileges were scheduled to be suspended or revoked
indefinitely. 	Id. at ¶ 10(F). 	The notice advised Plaintiff that he could avoid the suspension or
revocation of his operating privileges if he satisfied certain requirements, including paying a
$100.00 restoration fee, providing security for the amount owed or a signed agreement with State
Farm indicating that the debt was settled or detailing an agreed upon payment plan, and filing a
form SR-22 proof of insurance. Id. Plaintiff requested and obtained an administrative hearing on
the matter, after which he received a second notice of suspension. Id. at ¶¶ 10(G)-(H). Plaintiff
requested a second hearing, but the DMV denied his request. See id. at ¶ 10(H).
Plaintiff alleges that during “subsequent calls to [the DMV],” he was told to “pay the
Insurance Company.” Id. at ¶¶ 10(H). Plaintiff further alleges that during a call with a supervisor
at the DMV, Plaintiff asked, “under what law they have the right to suspend” his license and
registration, to which the supervisor responded by informing him that it was “protocol.” Id. at ¶¶
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10(I). Shortly after his interaction with the DMV, Plaintiff filed the instant suit seeking, inter alia,
to restore his driver’s license. See id. at ¶ 9.
Service on Defendants
On October 7, 2025, the court issued summonses to Plaintiff for the DMV, NSB, and
Governor Ayotte, and directed Plaintiff to “print and serve the summonses and all attachments in
accordance with Fed. R. Civ. P. 4.” Doc. No. 2. The court issued a summons for State Farm on
November 20, 2025, again directing Plaintiff to serve the summons in accordance with Rule 4.
Doc. No. 6.
On November 24, 2025, the court docketed returns of service that purport to show service
of process on the DMV, NSB, and Governor Ayotte. Doc. Nos. 7, 8. As to NSB, Plaintiff filed a
document showing that process was mailed to NSB via certified mail on October 15, 2025, and
signed for on October 22, 2025. Doc. No. 7. Plaintiff purportedly engaged a Merrimack County
Deputy Sheriff to serve Governor Ayotte and the DMV. Doc. No. 8. On October 31, 2025, the
deputy sheriff delivered process to a staff assistant in the Governor’s office. 	Doc. No. 8. 	The
deputy’s return indicates that the staff assistant is “designated by law to accept service of process
on behalf of” Governor Ayotte and the DMV. Id.
On January 12, 2026, the court docketed a return of service that purported to show service
of process on State Farm. Doc. No. 14. The filing demonstrates that Plaintiff mailed process the
summons and Complaint to State Farm via certified mail and that the return receipt was signed on
December 3, 2025.
Plaintiff’s Motions for Default Judgment
On November 26, 2025, Plaintiff filed a letter with the Clerk’s office, which was docketed
as a motion for default judgment. Doc. No. 9. In his letter, Plaintiff stated he served Defendants
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NSB, Governor Ayotte, and the DMV, but those Defendants failed to timely respond to the
Complaint. Id. at pg. 1; See Doc. No. 12 (Plaintiff’s second motion seeking the entry of default
judgment against NSB, Governor Ayotte, and the DMV). Plaintiff filed a similar letter on January
12, 2026, regarding State Farm’s failure to timely respond to this lawsuit. Doc. No. 15. In both
motions, Plaintiff requests, inter alia, that the court “enter a Default Judgment . . . per Rule 55,”
award him $2.5 million in damages, and order the “immediate restoration of [his] driving
privileges.” Doc. Nos. 9, 15.
LEGAL STANDARD
“[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, 2023 WL 2988644, at *6 (D.
Mass. Mar. 10, 2023). 	First, “[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). 	Once the clerk enters a default
under Rule 55(a), the court may issue a default judgment under Rule 55(b)(1) or 55(b)(2).3 See
Fed. R. Civ. P. 55(b)(2).
3 Rule 55(b)(1) requires the clerk to enter a default judgment “against a defendant who has been
defaulted for not appearing” where “the plaintiff’s claim is for a sum certain or a sum that can be
made certain by computation[.]” Fed. R. Civ. P. 55(b)(1). 	Rule 55(b)(2) provides that “[i]n all
other cases, the [moving] party must apply to the court for a default judgment.” Fed. R. Civ. P.
55(b)(2). “[T]he court may enter judgment by default against a party 1) after notice and a hearing
if the party has appeared in the action or 2) without notice and a hearing if no appearance has been
made.” Niemic v. Maloney, 409 F. Supp. 2d 32, 37 (D. Mass. 2005).
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DISCUSSION
“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).” 	Dmitriev, 2023 WL 2988644, at *6. 	Here, Plaintiff
never sought entry of default pursuant to Rule 55(a), and the clerk has not entered a default for any
Defendant. Consequently, Plaintiff’s motions for default judgment are premature, and the district
judge should deny the motions on that basis alone.
The district judge should deny Plaintiff’s motion against NSB for the additional reason that
NSB responded to the Complaint by filing a motion to dismiss.4 Doc. No. 11. “‘ [I]f [a] defendant
appears and indicates a desire to contest the action, the court can exercise its discretion and refuse
to enter a default.’” Wells Fargo Bank v. Moskoff, No. 17-CV-136-JL, 2017 WL 11511601, at *2
(D.N.H. Nov. 14, 2017) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2682 at 18 (4th ed. 2016)). 	NSB is actively engaged in this
litigation, and therefore, there is no basis for a finding of default under Rule 55(a) or a default
judgement under Rule 55(b). 	See 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.”). Therefore, the court recommends that the district
judge deny Plaintiff’s motions for default judgment against Defendants.
CONCLUSION
For all the reasons detailed herein, this court recommends that the district judge deny
Plaintiff’s motions for default judgment without prejudice (Doc. No. 9, 12 and 15).
4 NSB also filed an objection to Plaintiff’s motion for default judgment. 	Doc. No. 13. 	In its
objection, NSB contends that “NSB cannot be defaulted for failing to answer because Fortune did
not properly serve NSB.” Doc. No. 13 at pg. 1. Specifically, NSB argues that service by certified
mail, without more, is insufficient. See Fed. R. Civ. P. 4(h); see also RSA 510:4, II.
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Any objections to this Report and Recommendation must be filed within fourteen (14) days
of receipt of this notice. The fourteen-day period may be extended upon motion. Failure to file
any objection 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). Only those issues raised in
the objection(s) to this Report and Recommendation “are subject to review in the district court”
and any issues “not preserved by such objection are precluded on appeal.” Sch. Union No. 37 v.
United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010) (quoting Keating v. Sec’y of Health &
Hum. Servs., 848 F.2d 271, 275 (1st Cir. 1988)).
_________________________
Talesha L. Saint-Marc
United States Magistrate Judge
January 27, 2026
cc: 	William E. Fortune, pro se
Counsel of Record
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