Opinion
CIVIL ACTION NO. 07-3000, SECTION: "J"(1).
November 27, 2007
REPORT AND RECOMMENDATION
Plaintiff, Legistine North, a state prisoner, filed this pro se and in forma pauperis complaint pursuant to 42 U.S.C. § 1983 against Dr. Jerry Thomas. Currently pending before the Court is plaintiff's motion for entry of default judgment. That motion should be denied for at least two reasons.
Rec. Doc. 18.
First, plaintiff's motion was premature because the Clerk of Court had not entered a default pursuant to Fed.R.Civ.P. 55(a).Griffin v. Foti, Civ. Action No. 03-1274, 2003 WL 22836493, at *1 (E.D. La. Nov. 24, 2003); Great Atlantic and Pacific Tea Co. v. Heath, Civ. Action No. 95-509, 1995 WL 258317, at *1 (E.D. La. Apr. 27, 1995).
Second, in any event, the entry of a default judgment is matter of discretion, and "a party is not entitled to a default judgment as a matter of right, even where the defendant is technically in default. In fact, default judgments are a drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme situations." Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (quotation marks, brackets, and citations omitted);Griffin, 2003 WL 22836493, at *1. This not such a situation. Moreover, defendant has now answered the complaint and obviously intends to vigorously defend himself against plaintiff's allegations. Defendant should be allowed the opportunity to do so.
RECOMMENDATION
It is therefore RECOMMENDED that plaintiff's motion for default judgment, Rec. Doc. 18, be DENIED.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).