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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

WILEY DERRELL REESE,

Plaintiff,

vs. Case No.: 3:04cv17/RV/EMT

DEPUTY KEVIN COXWELL

and DEPUTY DEVIN HUNNICUTT,

Defendants.

___________________________________/

REPORT AND RECOMMENDATION

This cause is before the court on Plaintiff’s Motion for Default (Doc. 60), which this court

construes as a motion for default judgment pursuant to Rule 55 of the Federal Rules of Civil

Procedure.

In part, Rule 55 provides:

(a) Entry. When a party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend as provided by these rules and that fact is made

to appear by affidavit or otherwise, the clerk shall enter the party’s default.

(b) Judgment. Judgment by default may be entered as follows:

(1) By the Clerk. When the plaintiff’s claim against a defendant is for a sum certain

or for a sum which can by computation be made certain, the clerk upon request of the

plaintiff and upon affidavit of the amount due shall enter judgment for that amount

and costs against the defendant . . .

(2) By the Court. In all other cases the party entitled to a judgment by default shall

apply to the court therefor . . . If the party against whom judgment by default is

sought has appeared in the action, the party . . . shall be served with written notice

of the application for judgment at least 3 days prior to the hearing on such

application. If, in order to enable the court to enter judgment or to carry it into

effect, it is necessary . . . to establish the truth of any averment by evidence or to

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Case No.: 3:04cv17/RV/EMT

make an investigation of any other matter, the court may conduct such hearings or

order such references as it deems necessary and proper and shall accord a right of

trial by jury to the parties when and as required by any statute of the United States.

(c) Setting Aside Default. For good cause shown the court may set aside an entry of

default and, if a judgment by default has been entered, may likewise set it aside in

accordance with Rule 60(b). . . .

Thus, prior to obtaining a default judgment under either Rule 55(b)(1) by the clerk or Rule 55(b)(2)

by the court, there must be an entry of default as provided in Rule 55(a), which the clerk is

authorized to enter.

In support of his motion, Plaintiff states that the court set a deadline of August 7, 2006, for

Defendants to file with the court and serve upon Plaintiff a pre-trial narrative statement, list of trial

exhibits, and list of trial witnesses, and Defendants have failed to meet this deadline. The court

docket reflects that Defendants filed their pre-trial materials on August 4, 2006, and the certificate

of service indicates that a copy of the filing was provided to Plaintiff at his address of record that

same day (see Doc. 59). As Defendants complied with the court order, Plaintiff is not entitled to a

default judgment.

Accordingly, it is respectfully RECOMMENDED:

That Plaintiff’s Motion for Default (Doc. 60) be DENIED.

At Pensacola, Florida, this 16th day of August 2006.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within ten

days after being served a copy thereof. Any different deadline that may appear on the

electronic docket is for the court’s internal use only, and does not control. A copy of objections

shall be served upon the magistrate judge and all other parties. Failure to object may limit

the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts,

858 F.2d 698, 701 (11th Cir. 1988).

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