Barry v. Felker et al

Filing 18

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge George W. Foley on 10/06/09 RECOMMENDING that the 14 Motion for Default Judgment be denied. Objections to these F&Rs are due w/i 20 days; referred to Judge Philip M. Pro. (Benson, A.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter is before the Court on Plaintiff's Motion for Default Judgment (Dkt. #14), filed September 11, 2009. Plaintiff argues that the Court should issue default judgment because Defendants have not responded to Plaintiff's Complaint. The Court will recommend that Plaintiff's Motion for Default Judgment be denied. (Dkt. #14). Default judgments are ordinarily disfavored by the Courts. Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir.1985). Cases should be decided upon their merits whenever reasonably possible. Id. In this instance, thirteen days after Plaintiff filed this motion, on September 24, 2009, Defendants filed an answer to Plaintiff's Complaint. (Dkt. #15). As a result, Plaintiff's argument that Defendants have failed to respond is moot. Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff's Motion for Default Judgment (Dkt. #14) should be denied. ... ... ... ... TIMOTHY DEMOND BARRY, ) ) Plaintiff, ) ) vs. ) ) T. FELKER, et al., ) ) Defendants. ) __________________________________________)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Case No. 2:08-cv-01722-PMP-GWF FINDINGS AND RECOMMENDATIONS Motion for Default Judgment (Dkt. #14)

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NOTICE These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20) days after being served with these Findings and Recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED this 6th day of October, 2009.

______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge

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