Gibson v. Zavaras et al

Filing 63

ORDER denying 57 Plaintiff's Motion for Entry of Default; denying 60 Plaintiff's Motion for Default Judgment by Magistrate Judge Kristen L. Mix on 1/28/2010.(erv, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 09-cv-02328-WYD-KLM WELLMAN GIBSON, Plaintiff, v. CAPT. MATOYER, Supervisor, CO LOPEZ, DOC OFFICER, Security, MAJOR MARTINEZ, AVCF Programs Manager, KIM BEICKER, Manager, Faith and Citizen Programs ARISTEDES W. ZAVARAS, Executive Director DOC., SGT. VERENA PACHECO, Kitchen Staff, and STEVE HARTLEY, Warden AVCF, Defendant(s). _____________________________________________________________________ ORDER _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX This matter is before the Court on Plaintiff's Notice to the Clerk, Entry of Default [Docket No. 57; Filed January 26, 2010] and (Motion for Default Judgment by Plaintiff) [Docket No. 60;Filed January 27, 2010] (the "Motions"). IT IS HEREBY ORDERED that the Motions are DENIED. Pursuant to Fed. R. Civ. P. 55(a), the Clerk must enter default "[w]hen a party ... has failed to plead or otherwise defend ..." Contrary to Plaintiff's contention, Defendants are not subject to default. Defendants filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment [Docket No. 54] on January 19, 2010. Therefore, default has not occurred and Plaintiff's Motions lack merit.

Dated: January 28, 2010

BY THE COURT: ___/s/ Kristen L. Mix____________ Kristen L. Mix United States Magistrate Judge