Smith et al v. Saba et al

Filing 29

RECOMMENDATION to deny 24 MOTION for Default Judgment filed by plaintiff Travis Smith. Ordered by U.S. Mag Judge Claude W. Hicks, Jr. on 11/18/09. (CWH)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ALBANY DIVISION TRAVIS SMITH, Plaintiff VS. CORPORAL LEBLANC, et al., Defendants NO. 1:07-CV-124 (WLS) PROCEEDINGS UNDER 42 U.S.C. 1983 BEFORE THE U. S. MAGISTRATE JUDGE RECOMMENDATION Plaintiff has filed a MOTION FOR DEFAULT JUDGMENT against the defendants herein, apparently based on the defendants' alleged failure to respond to discovery requests. Tab #24. The entry of default or default judgment, however, is not the proper remedy for a party's alleged failure to respond to discovery requests. Rule 55(a) of the Federal Rules of Civil Procedure provides for the entry of default only "[w]hen 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 defendants filed an Answer to plaintiff's complaint on April 8, 2008. Tab #18. Accordingly, it is the recommendation of the undersigned that the plaintiff's MOTION FOR DEFAULT JUDGMENT be DENIED. Pursuant to 28 U.S.C. 636 (b)(1), the parties may file written objections to this recommendation with the Honorable W. Louis Sands, United States District Judge, WITHIN TEN (10) DAYS of receipt thereof. SO RECOMMENDED, this 18th day of NOVEMBER, 2009. CLAUDE W. HICKS, JR. UNITED STATES MAGISTRATE JUDGE

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