The opinion of the court was delivered by: THOMAS J. MCAVOY
Plaintiffs Kevin Martin and Philip Figueroa brought this suit against the above-captioned defendants under title 42 U.S.C. section 1983 alleging violations of their constitutional rights. Plaintiff's motion before the court seeks a Temporary Restraining Order (TRO). Plaintiffs also seek to enjoin the above-captioned defendants from employing a "blocking system" on the inmate "call home" program based on the receiving party's credit history or conditioned upon a One Hundred Dollar ($ 100.00) deposit. Additionally, the plaintiffs seek to compel discovery and obtain a default judgment against defendant Dennis Casey. Defendant Coughlin has moved to dismiss the complaint as well as for a protective order.
This matter was referred to magistrate judge David N. Hurd pursuant to a standing order dated August 2, 1985. After considering the motions and reviewing the record as a whole, the magistrate judge issued a report-recommendation, dated March 23, 1995, in which he recommended that 1) Plaintiff's motion for a TRO be denied, 2) defendant Coughlin's motion to dismiss be denied, and 3) plaintiff's motion for default judgment be held in abeyance pending the disposition of the complaint. Defendant Coughlin filed objections to the Magistrate's report and recommendation on March 30, 1995. The plaintiff subsequently responded on May 4, 1995.
This matter was referred to the United States District Court for the Northern District of New York on April 20, 1995. The court herein addresses the objections and responses raised by the parties to the magistrate judge's Report-Recommendation
A. Temporary Restraining Order
For the issuance of a temporary restraining order or preliminary injunction, the Second Circuit requires a party to demonstrate: irreparable harm, and "either 1) a likelihood of success on the merits of its case or 2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in  favor [of the moving party]." Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775 (2d Cir. 1994); Polymer Technology Corp. v. Mimran, 37 F.3d 74, 77-78 (2d Cir. 1994), quoting, Coca-Cola Co. v. Tropicana Prods. Inc., 690 F.2d 312, 314-15 (2d Cir. 1982); Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979) (per curiam); see also, Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992). The decision to grant a preliminary injunction is within the discretion of the trial judge. Waldman, 43 F.3d at 780, quoting polymer, 37 F.3d at 78.
This court concurs with the magistrate's conclusion that Plaintiffs Martin and Figueroa have not demonstrated that they are entitled to any preliminary relief pending trial of this action. Further, there appears no justification in the record before the court that the plaintiffs have or will suffer irreparable injury. Therefore, under the rule in Waldman, 43 F.3d at 780 and Polymer, 37 F.3d at 77-78, the plaintiffs' motion for a TRO is denied.
B. Motion for Default Judgment
1. Standard for Default Judgment
Rule 55(a) of the Federal Rules of Civil Procedure provides that a clerk may enter a default upon being advised by affidavit that a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend. Hodges v. Jones, 873 F. Supp. 737 (N.D.N.Y. 1995); Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993); In Re Men's Sportswear, Inc., 834 F.2d 1134 (2d Cir. 1987). After entry of default, the defaulting party may move to set the entry aside for "good cause" shown pursuant to Fed. R. Civ. P. 55(c). Default judgments, on the other hand, are set aside only in accordance with the more stringent standard contemplated by Rule 60(b). Id.
As a general rule, defaults are generally not favored, particularly when the case presents issues of fact. It follows then, that doubts are to be resolved in favor of a trial on the merits. See, Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981); Klapprott v. United States, 335 U.S. 601, 93 L. Ed. 266, 69 S. Ct. 384 (1949). See also, Pena v. Seguros La Comercial, S.A., 770 F.2d 811 (9th Cir. 1985) (default judgments are generally not favored; whenever it is reasonably possible, cases should be decided on the merits).
With respect to defaults, courts are entitled to enforce compliance with the time limits of the Rules by various means. However, the extreme sanction of a default judgment must remain a weapon of last, and not first, resort. See, Meehan, 652 F.2d at 277; Peterson v. Term Taxi Inc., 429 F.2d 888, 890-892 (2d Cir. 1970). Defaults are reserved for rare occasions and when doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). In other words, "good cause" and ...