Opinion
Case No. C07-5480RBL/JKA.
March 11, 2008
REPORT AND RECOMMENDATION
This 42 U.S.C. § 1983 action has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b) and local Rules MJR 3 and 4. Before the court is plaintiff's motion for default filed February 13, 2008 (Dkt # 56). Two days before the plaintiff's motion was filed the defendants filed a motion to dismiss (Dkt # 53). As a motion to dismiss is pending the motion for default is frivolous. Accordingly the court recommends the motion for default be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on April 4, 2008, 2008, as noted in the caption.