Buhl v. Berkebile

Filing 23

MINUTE ORDER denying 15 Motion for Default Judgment by Judge Philip A. Brimmer on 03/10/15.(jhawk, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 14-cv-02029-PAB LEROY BUHL, Petitioner, v. D. BERKEBILE, Respondent. _____________________________________________________________________ MINUTE ORDER _____________________________________________________________________ Entered by Judge Philip A. Brimmer This matter is before the Court on the Motion for Judgment by Default [Docket No. 15] filed by petitioner Leroy Buhl. Petitioner argues that default judgment should be entered against respondent for respondent’s failure to timely file a preliminary response. Docket No. 15 at 1-2. “When 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). Following the clerk’s entry of default, the party must apply to the court for a default judgment. Fed. R. Civ. P. 55(b). Petitioner has not requested that the Clerk of the Court enter respondent’s default, nor has petitioner shown that there exist grounds for the Clerk to do so. On July 23, 2014, the magistrate judge ordered respondent to file a preliminary response on the issue of administrative exhaustion within 21 days of the order. Docket No. 5 at 2. On August 13, 2014, respondent timely filed a Preliminary Response to Application for Writ of Habeas Corpus [Docket No. 10]. On August 18, 2014, the magistrate judge ordered respondent to show cause within 21 days of the order why petitioner’s application for a writ of habeas corpus should not be granted. Docket No. 11. On September 8, 2014, respondent filed a Response to Order to Show Cause. Docket No. 17. On September 25, 2014, petitioner filed a reply. Docket No. 22. Thus, respondent has not failed to plead or otherwise defend this action and petitioner has otherwise failed to satisfy the procedural requirements of Rule 55. The remainder of petitioner’s arguments go to the merits of his claims and, as a result, are inappropriately raised in the present motion. It is therefore ORDERED that petitioner’s Motion for Judgment by Default [Docket No. 15] is DENIED. DATED March 10, 2015.

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