Opinion
C.A. No. 04-156 ML.
August 24, 2004
Carlos Porfirio pro se.
Report and Recommendation
On April 30, 2004, pro se plaintiff Carlos Profirio Ortis ("Ortis") filed a Complaint naming as defendants Edward M. Pepe, Esq., and the Moretti and Perlow Law Offices. Presently before the Court is the motion of the plaintiff for a default judgment pursuant to Fed.R.Civ.P. 55(b). This matter has been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
The entry of default, pursuant to Fed.R.Civ.P. 55(a), is a prerequisite for the entry of judgment upon that default, pursuant to Fed.R.Civ.P. 55(b). See e.g. New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996) ("After defendant's default has been entered, plaintiff may apply for judgment based upon that default."); Pinaud v. County of Suffolk, 52 F.3d 1139, 1152 n. 11 (2nd Cir. 1995) (noting the distinction between entry of default and entry of default judgment); Dahl v. Kanawha Investment Holding Co., 161 F.R.D. 673 (N.D. Iowa 1995) (commenting that the entry of default is the first of two steps prior to the entry of a default judgment). Here, plaintiff has failed to secure an entry of default pursuant to Fed.R.Civ.P. 55(a). Accordingly, I recommend that plaintiff's motion for a default judgment, pursuant to Fed.R.Civ.P. 55(b), be denied.
Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b). Failure to file timely, specific objection to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision.United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).