Riley et al v. Rutherford et al

Filing 25

ORDER denying 23 Motion for entry of clerks default. Signed by Magistrate Judge Monte C. Richardson on 9/3/2010. (BEE)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION TIMMY J. RILEY and BARBARA J. RILEY, Plaintiffs, vs. JOHN H. RUTHERFORD, as Sheriff of Duval County, in his individual and official capacity, et al., Defendants. _____________________________________/ Case No. 3:10-cv-644-J-34MCR

ORDER
THIS CAUSE is before the Court on Plaintiffs' Motion for Entry of a Clerk's Default (Doc. 23) filed September 1, 2010. On September 2, 2010, Defendant filed its response in opposition to Plaintiffs' Motion (Doc. 24). Accordingly, this matter is now ripe for judicial determination. Plaintiffs seek the entry of a clerk's default against Defendant, John Rutherford, pursuant to Federal Rule of Civil Procedure 55(a). (Doc. 23). However, on August 23, 2010, Defendant timely filed a Motion to Dismiss. (Doc. 14). Accordingly, Defendant has not "failed to plead or otherwise defend this lawsuit." Fed.R.Civ.P. 55(a). The Court acknowledges that the service copies of Defendant's Motion to Dismiss were mailed to pro se Plaintiff one day after they were due to be served. However, the Motion to Dismiss was timely filed and Defense counsel asserts that the short delay in service was due to an inadvertent clerical error. The Court can see no reason that

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Plaintiffs were prejudiced by this short delay. Therefore, Plaintiffs' Motion is due to be denied and Defendant's Motion to Dismiss is considered timely served. See Lee v. Huttig Bldg. Prods., 2005 U.S. Dist. LEXIS 22364, 2005 WL 2266591 (M.D. Ga. Sept. 16, 2005) (holding defaults are disfavored and instead federal courts prefer that cases be decided on the merits). Accordingly, after due consideration, it is ORDERED: Plaintiffs' Motion for Entry of a Clerk's Default (Doc. 23) is DENIED. Defendant's Motion to Dismiss (Doc. 14) is considered timely served. DONE AND ORDERED in Chambers in Jacksonville, Florida this 3rd day of September, 2010.

MONTE C. RICHARDSON UNITED STATES MAGISTRATE JUDGE Copies to: Counsel of Record Any Unrepresented Party

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