Berk et al v. Moore et al

Filing 54

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 46 in that 49 Motion for a De Novo Review filed by Otto Berk, Jeff Blair and Don Hall is denied 24 Motion to Dismiss for Misjoiner filed by B Slaton, Cynthia Mausser, Ernie Moor e, Ohio Adult Parole Board, Robert Maszczynski, J Coakley, Kathleen Kovach, R F Rauschenberger, P Harris, T Thalheimer, Ellen Venters, Linda James and B Brogan is denied and 28 Motion for Default Judgment filed by Otto Berk, Jeff Blair and Don Hall is denied. Signed by Judge Gregory L Frost on 6/7/11. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

OTTO BERK, et al.,
Plaintiffs,

v.

Case No. 2:10-CV-1082
Judge Frost
Magistrate Judge King

ERNIE MOORE, DIRECTOR, et al.,
Defendants.

ORDER
On May 16, 2011, the United States Magistrate Judge recommended
that Defendants’ motion to dismiss for misjoinder be denied and that
Plaintiffs’ motion for default judgment be denied.
Recommendation, Doc. No. 46.

Report and

This matter is now before the Court on

the objection filed by Plaintiffs Berk, Blair and Hall.
De Novo Review, Doc. No. 49.

Motion for a

Defendants have not filed objections,

although all parties were advised of their right to do so and of the
consequences of their failure to file objections.
The Magistrate Judge recommended that Plaintiffs’ motion for
default judgment be denied, observing that the Court had stayed the
date by which Defendants were to respond to the complaint, pending
resolution of Defendants’ motion to dismiss for misjoinder.
and Recommendation, at 3 (citing Order, Doc. No. 37).

Report

In their

objection, Plaintiffs appear to disagree with the Court’s stay of
response date, arguing that Defendants should have responded to the
complaint and that their failure to do so, combined with the filing of

the motion to dismiss for misjoinder, worked to Plaintiffs’ prejudice.
The decision of the Magistrate Judge to grant Defendants’ request
to stay their answer date was neither clearly erroneous nor contrary
to law.

See 28 U.S.C. §636(b); Fed. R. Civ. P. 72.

Defendants’

failure to respond to the complaint was therefore authorized by the
Court.

Under these circumstances, it cannot be said that Defendants

were in default.

Plaintiffs’ motion for default judgment is without

merit.
Plaintiffs’ Motion for a De Novo Review, Doc. No. 49, is
therefore DENIED.

The Report and Recommendation is ADOPTED and

AFFIRMED.

Defendants’ Motion to Dismiss for Misjoinder, Doc. No. 24,

is DENIED.

Plaintiffs’ Motion for Default Judgment, Doc. No. 28, is

DENIED.

/s/
Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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