United States District Court, D. South Carolina, Greenville Division
REPORT AND RECOMMENDATION
F. McDonald, United States Magistrate Judge
matter comes before the court on the failure of the
defendants to respond to the plaintiff's complaint or
otherwise defend. For the reasons that follow, the
undersigned recommends that default be entered against the
plaintiff filed this action against the
defendants on June 6, 2016, seeking damages for
deliberate indifference to his serious medical needs and
excessive force (doc. 1). On June 15, 2016, service of
process was authorized for the defendants (doc. 7). The
summonses for the defendants were returned executed on July
12, 2016, and the United States Marshal noted on the Forms
USM-285 that both defendants were served on June 29, 2016
(doc. 13); thus, their answer to the complaint was due by
July 20, 2016. The defendants failed to file an answer.
October 27, 2016, the undersigned issued an order directing
the defendants to file an answer or other responsive pleading
within 20 days of the date of the order (doc. 30). The order
was sent by certified mail and the certified mail receipt was
received by the court on November 3, 2016 (doc. 34). The
defendants failed to respond to the order. On January 31,
2017, the undersigned issued an order directing the
defendants to show cause why default should not be entered
against them within fourteen days of the date of the order
(doc. 37). The order was again sent by certified mail and the
certified mail receipt was received by the court on February
6, 2017 (doc. 42). The defendants' response was due by
February 17, 2017; to date, the defendants have not filed a
Rule 55(a) of the Federal Rules of Civil Procedure,
“When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
that failure is show by affidavit or otherwise, the clerk
must enter the party's default.” Rule 55(b)
provides two avenues for entry of default judgment. The Clerk
may enter a default judgment at the plaintiff's request
if the plaintiff's claim is for a sum certain; otherwise,
the non-defending party “must apply to the court for
default judgment.” Fed.R.Civ.P. 55(b)(1)-(2). The law
disfavors default judgment and favors resolution of claims on
their merits. 10A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2681 (3d ed.
1998). However, it is well-settled law that “although
the clear policy of the Rules is to encourage dispositions of
claims on their merits, trial judges are vested with
discretion, which must be liberally exercised, in entering
[default] judgments and in providing relief therefrom.”
United States v. Moradi, 673 F.2d 725, 727 (4th Cir.
1982) (citations omitted). This power “is one inherent
in the courts in the interest of the orderly administration
of justice [and] may be exercised sua sponte under proper
circumstances.” Flaska v. Little River Marine
Constr. Co., 389 F.2d 885, 887 (5th Cir. 1968) (internal
quotation marks omitted); accord Trans World Airlines,
Inc. v. Hughes, 332 F.2d 602, 614 (2d Cir. 1964).
“This Court's inherent power to manage its caseload
. . . provides the authority to sua sponte enter a
default judgment against a litigant who has failed to
prosecute [its] case with reasonable diligence and who has
not complied with the Court's rules of procedure.”
Singapore Tong Teik PTE Ltd. v. Coppola, No.
04-cv-3440, 2007 WL 2375796, at *4 (E.D.N.Y. Aug. 17, 2007)
(quoting Singh v. Jackson, 1986 WL 12514, at *1
(S.D.N.Y. Oct. 31, 1986)).
the defendants have failed to participate in this action
despite multiple opportunities and warnings from the court.
They have failed to answer the plaintiff's complaint and
have failed to respond to orders of the court. Therefore, it
is recommended that the District Judge find that the
defendants have failed to defend this action pursuant to Rule
55(a) of the Federal Rules of Civil Procedure, and direct the
Clerk to enter an entry of default against them.
foregoing reasons, it is recommended that the District Judge
find that the defendants have failed to defend this action
pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure, and direct the Clerk to enter an entry of default
judgment against them.
attention of the parties is directed to the important notice
on the next page.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of
the record in order to accept the ...