Kershaw v. No Defendants Named

Filing 58

REPORT AND RECOMMENDATION that the 40 Demand for Clerk to Enter a Default Judgement and the 43 MOTION for the Entry of Default and Default Judgement be denied, by Magistrate Judge Boyd N. Boland on 9/4/09. (ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 09-cv-01203-PAB-BNB KEM KERSHAW, Plaintiff, v. TERRY MAKETA, EL PASO COUNTY CRIMINAL JUSTICE CENTER, and CORRECTION HEALTH CARE MANAGERS, Defendants. ______________________________________________________________________________ RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________________ This matter arises on the following motions (the "Motions") filed by the plaintiff: 1. Demand for Clerk to Enter a Default Judgement . . . [Doc. #40, filed 08/12/2009]; and 2. Motion for the Entry of Default and Default Judgement . . . [Doc. #43, filed 08/17/2009]. I respectfully RECOMMEND that the Motions be DENIED. The plaintiff seeks entry of default and default judgment against defendants Terry Maketa and the El Paso County Criminal Justice Center. Both defendants were served on June 30, 2009 [Docs. #24 and #25]. Therefore, their answers were due on July 20, 2009. Fed. R. Civ. P. 12(a)(1)(A)(I) (2009 Edition).1 The defendants filed a joint motion to dismiss on July 20, 2009 [Doc. #29]. Accordingly, the defendants are not in default.

Rule 12 of the 2009 Revised Edition of the Federal Rules of Civil Procedure does not take effect until December 1, 2009. Fed. R. Civ. P. 12, "2009 Amendments," (2009 Revised Edition).

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I respectfully RECOMMEND that the Motions be DENIED. FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have 10 days after service of this recommendation to serve and file specific, written objections. A party's failure to serve and file specific, written objections waives de novo review of the recommendation by the district judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. In re Key Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000). A party's objections to this recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review. United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Dated September 4, 2009. BY THE COURT: s/ Boyd N. Boland United States Magistrate Judge

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