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Daniel v. Power

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


February 26, 2007

DEMETRIS DANIEL, PLAINTIFF,
v.
DR. MARVIN POWER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Herndon, District Judge

ORDER

Before the Court is a Report and Recommendation ("R&R") (Doc. 115), issued by Magistrate Judge Wilkerson, pursuant to 28 U.S.C. § 636(b)(1)(B), recommending Plaintiff's Motion for Default Judgment (Doc. 76) against defendants Charles Hinsley and Delight Griswold be denied. According to the proposed findings of fact stated in the R&R, Plaintiff avers that these two Defendants are in default for failing to file an Answer to his Complaint within the 20 days proscribed by Federal Rule of Civil Procedure 55(b). However, the R&R notes that both Defendants executed waivers of service (Docs. 69 & 70), allowing them 60 days to file their Answers, instead of 20 days.

While defendant Griswold timely filed her Answer, the R&R also shows that defendant Hinsley did not. However, the day after the filing deadline, defendant Hinsley moved for leave to file his Answer instanter (Doc. 78), explaining that his counsel inadvertently failed to file the answer on his behalf. His Motion was granted by the Court (Doc. 107). Therefore, Plaintiff has no right under the law to seek a default judgment against defendant Griswold, as she timely filed her Answer. Thus, the only defendant to whom such Motion applies is defendant Hinsley.

Recognizing that the Seventh Circuit favors resolving a legal dispute on the merits, if possible, over entering a default judgment against a party, the R&R found that Plaintiff's Motion (Doc. 76) was not well-taken (Doc. 115, p. 2, citing Sun v. Bd. of Trustees of Univ. of Ill., No. 06-2438, 2007 WL 93313, at *11 (7th Cir. Jan. 16, 2007)(stating that a default judgment "is a weapon of last resort . . ."). This holds especially true when the default is merely a technical mishap of sorts -- if it is clear the defendant showed no wilful disregard for the ongoing litigation. As the R&R properly recognized, proper regard was demonstrated by defendant Hinsley's "prompt action to correct the situation" (Doc. 115, p. 2). His Answer is now part of the record, it was made with little interruption to the litigative process, it does not appear to have caused prejudice to Plaintiff, and therefore warrants denying Plaintiff's Motion (Doc. 76).

The parties were given ten days to file written objections to the R&R. None were filed. Therefore, as none of the parties have filed timely objections to the R&R, pursuant to 28 U.S.C. § 636(b), this Court need not conduct a de novo review of this matter. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Thus, the Court ADOPTS the R&R in its entirety, thereby DENYING Plaintiff's Motion for Default Judgment (Doc. 76).

IT IS SO ORDERED.

David RHerndon United States District Judge

20070226

© 1992-2007 VersusLaw Inc.



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