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Malik Az'real Mosby v. Marshall Trabout

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 24, 2011

MALIK AZ'REAL MOSBY, PLAINTIFF,
v.
MARSHALL TRABOUT, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hood, J.

ORDER

Plaintiff has filed a document which has been construed as a motion for default judgment pursuant to Fed. R. Civ. P. 55(b)(2) [Dkt. Nos. 93 and 98]. Defendant Marshall Trabout, M.D. has now moved the Court to set aside the default previously entered [Dkt. No. 105]. United States Magistrate Judge George H. Lowe to whom this matter has been referred for initial consideration has filed his Report and Recommendation [Dkt. No. 113] to which Plaintiff has filed objections [Dkt. No. 114]. Having considered the matter de novo in light of Plaintiff's objections, and being advised:

IT IS ORDERED herein as follows:

(1) that Defendant Trabout's motion to set aside the default [Dkt. No.105] be, and the same hereby is, GRANTED inasmuch as it is well-settled in the Second Circuit that defaults are not favored, and that there is a strong preference for resolving disputes on their merits. Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1077 (2d Cir. 1995).

(2) that Plaintiff's motion for default judgment [Dkt. Nos. 93 and 98] be, and the same hereby is, DENIED AS MOOT.

(3) that Plaintiff's motion for an order directing the United States Marshal to bring Defendant to court [Dkt. No. 101] be, and the same hereby is, DENIED AS MOOT.

Sitting by Designation

20110124

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