Green v. Hood, No. 1:2009cv00112 - Document 10 (D. Mont. 2010)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. 7 Motion for Default Judgment filed by Karl Wayne Green, construed as a Rule 55 Motion for Default, is DENIED. Signed by Judge Richard F. Cebull on 3/26/2010. Copy mailed to Green. (TAG, )

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Green v. Hood Doc. 10 FILED 20ID hAR 26 AP1 D LiB BY ­­­­­­DEPUTY CI.ERK IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION KARL WAYNE GREEN, Plaintiff, vs. RAY H. HOOD, Secretary of Transportation, Defendant. CV-09-112-BLG-RFC ) ) ) ) ) ) ) ) ) ) ) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE ­­­­­­­­­­­­­­­­­­­­­­­­) On February 23,2010, United States Magistrate Judge Carolyn Ostby entered Findings and Recommendation. Magistrate Judge Ostby recommends this Court construe Plaintiff's Motion for Summary Judgment against Defendant for Failure to Respond to Complaint (Doc. 7) as a Rule 55 Motion for Default and deny said motion. 1 Dockets.Justia.com Upon service of a magistrate judge's findings and recommendation, a party has 14 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, no party filed objections to the February 23, 2010 Findings and Recommendation. Failure to object to a magistrate judge's findings and recommendation waives all objections to the findings of fact. Turner v. Duncan, 158 F.3d 449,455 (9th Cir. 1999). However, failure to object does not relieve this Court of its burden to review de novo the magistrate judge's conclusions of law. Barilla v. Ervin, 886 F.2d 1514,1518 (9th Cir. 1989). After an extensive review of the record and applicable law, this Court finds Magistrate Judge Ostby's Findings and Recommendation are well grounded in law and fact and adopts them in their entirety. Rule 55 of the Federal Rules of Civil Procedure provides: "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). Plaintiff has failed to comply with Rule 55 in that he has not filed proof o f service even though he states he has the documentation to show the service date. Also, default is not appropriate because Defendant filed an Answer to the Complaint on March 25,2010. 2 Accordingly, IT IS HEREBY ORDERED Plaintiff's Motion for Summary Judgment against Defendant for Failure to Respond to Complaint (Doc. 7) is construed as a Rule 55 Motion for Default and DENIED. The Clerk of DATED the notify the parties of the entry of this Order. of March, 2010. / RICRA F. CEBULL UNITED STATES DISTRICT JUDGE 3

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