Mosby v. Trabout

Full title: MALIK AZ'REAL MOSBY, Plaintiff, v. MARSHALL TRABOUT, et al., Defendants

Court: United States District Court, N.D. New York

Date published: Jan 25, 2011

Civil Action No. 9:06-CV-01165-JMH (N.D.N.Y. Jan. 25, 2011)

Opinion

Civil Action No. 9:06-CV-01165-JMH.

January 25, 2011

ORDER

JOSEPH HOOD, District Judge

Plaintiff has filed a document which has been construed as a motion for default judgement pursuant to Fed.R.Civ.P. 55(b)(2) [Dkt. Nos. 93 and 98]. Defendant Marshall Trabout, M.D. has now moved the Court to set aside the default previously entered [Dkt. No. 105]. United States Magistrate Judge George H. Lowe to whom this matter has been referred for initial consideration has filed his Report and Recommendation [Dkt. No. 113] to which Plaintiff has filed objections [Dkt. No. 114]. Having considered the matter de novo in light of Plaintiff's objections, and being advised:

IT IS ORDERED herein as follows:

(1) that Defendant Trabout's motion to set aside the default [Dkt. No. 105] be, and the same hereby is, GRANTED inasmuch as it is well-settled in the Second Circuit that defaults are not favored, and that there is a strong preference for resolving disputes on their merits. Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1077 (2d Cir. 1995).

(2) that Plaintiff's motion for default judgment [Dkt. Nos. 93 and 98] be, and the same hereby is, DENIED AS MOOT.

(3) that Plaintiff's motion for an order directing the United States Marshal to bring Defendant to court [Dkt. No. 101] be, and the same hereby is, DENIED AS MOOT.

This the 24th day of January, 2011.