(PC) Barry v. Felker et al, No. 2:2008cv01722 - Document 18 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge George W. Foley on 10/06/09 RECOMMENDING that the 14 Motion for Default Judgment be denied. Objections to these F&Rs are due w/i 20 days; referred to Judge Philip M. Pro. (Benson, A.)

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(PC) Barry v. Felker et al Doc. 18 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 TIMOTHY DEMOND BARRY, ) ) Plaintiff, ) ) vs. ) ) T. FELKER, et al., ) ) Defendants. ) __________________________________________) Case No. 2:08-cv-01722-PMP-GWF FINDINGS AND RECOMMENDATIONS Motion for Default Judgment (Dkt. #14) 13 14 This matter is before the Court on Plaintiff’s Motion for Default Judgment (Dkt. #14), filed 15 September 11, 2009. Plaintiff argues that the Court should issue default judgment because Defendants 16 have not responded to Plaintiff’s Complaint. 17 The Court will recommend that Plaintiff’s Motion for Default Judgment be denied. (Dkt. #14). 18 Default judgments are ordinarily disfavored by the Courts. Pena v. Seguros La Comercial, S.A., 770 19 F.2d 811, 814 (9th Cir.1985). Cases should be decided upon their merits whenever reasonably possible. 20 Id. In this instance, thirteen days after Plaintiff filed this motion, on September 24, 2009, Defendants 21 filed an answer to Plaintiff’s Complaint. (Dkt. #15). As a result, Plaintiff’s argument that Defendants 22 have failed to respond is moot. Accordingly, 23 IT IS HEREBY RECOMMENDED that Plaintiff’s Motion for Default Judgment (Dkt. #14) 24 should be denied. 25 ... 26 ... 27 ... 28 ... Dockets.Justia.com 1 NOTICE 2 These Findings and Recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20) days 4 after being served with these Findings and Recommendations, plaintiff may file written objections with 5 the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 7 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 8 DATED this 6th day of October, 2009. 9 10 11 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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