Sethunya et al v. Bonair Management et al

Filing 13

REPORT AND RECOMMENDATIONS re 10 MOTION for Default Judgment: magistrate recommends denying the motion. Objections to R&R due by 5/27/2009. Signed by Magistrate Judge Samuel Alba on 5/12/09 (alt)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

VICTORIA SETHUNYA and CLETUS SETHUNYA, Case No. 2:09-CV-249-CW Plaintiffs,

vs.

BONAIR MANAGEMENT and SHALISE VIGIL, Defendants.

REPORT AND RECOMMENDATION

Before the court is Plaintiffs' Motion for Default Judgment. (Docket Entry #10). Plaintiffs argue that the court must enter a

default judgment against Defendants because Defendants did not respond to their summons within twenty days. Defendants filed a Motion to Dismiss for Lack of Jurisdiction on April 13, 2009, the day Defendants were required to respond to Plaintiffs' complaint. (Docket Entries #3, 6). As

set forth in their memorandum in opposition to Plaintiffs' motion, Defendants communicated with Plaintiffs to ensure that Plaintiffs received a copy of the Motion to Dismiss, as well as its attachments. It is undisputed that Defendants' motion

appeared on the court's docket and that Plaintiffs received a copy of it. Rule 55 of the Federal Rules of Civil Procedure provides that default judgment is only appropriate when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules." Rule 12

provides that a pre-answer motion to dismiss is an appropriate defense for purposes of Rule 55 and that no answer is due until the court resolves the motion, unless the court postpones the disposition of the motion until the trial on the merits. Fed. R. Civ. P. 12(a)(1), 12(a)(4)(A). Therefore, because See

Defendants timely filed their Motion to Dismiss, the action has been properly defended, and Plaintiffs' Motion for Default Judgment should be denied. RECOMMENDATION Based on the above analysis, IT IS RECOMMENDED that Plaintiffs' Motion for Default Judgment (Docket Entry #10) be DENIED. Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they

must file any objections to the Report and Recommendation, with the clerk of the district court, pursuant to 28 U.S.C. § 636(b),

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within ten (10) days after receiving it. 636(b)(1).

See 28 U.S.C. §

Failure to file objections may constitute a waiver of

those objections on subsequent appellate review. Dated this 12th day of May, 2009. BY THE COURT:

__________________________________ Samuel Alba United States Magistrate Judge

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