1:18-cv-00287•Robinson v. FCI Berlin, Warden
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1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Zhivago Robinson v. Civil No. 18-cv-287-JL Robert Hazlewood, Warden, FCI Berlin REPORT AND RECOMMENDAITON Zhivago Robinson, an inmate at the Federal Correctional Institution, Berlin, New Hampshire (“FCI-Berlin”), has filed a petition for a writ of habeas corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2241. Before the court for a Report and Recommendation is Robinson’s motion (Doc. No. 15) seeking judgment in petitioner’s favor on the basis that the respondent to this action failed to timely respond to the petition.1 Background On October 26, 2018, the undersigned magistrate judge directed that Robinson’s petition be served on the respondent, the United States Attorney for the District of New Hampshire (“USAO-NH”), and the Attorney General. See Oct. 26, 2018 Order 1Petitioner entitled Document No. 15, “Motion for Summary Judgment.” Because the motion seeks judgment on the basis that the respondent defaulted by failing to file a timely response to the petition, the court has construed the motion as one for default judgment. See Aug. 7, 2019 Order. Case 1:18-cv-00287-JL Document 21 Filed 08/09/19 Page 1 of 4
2 (Doc. No. 3), at 1-2. The court further ordered the respondent to file an answer or motion to dismiss within sixty days of the date of service of the petition upon the USAO-NH. See id. The USAO-NH was served on October 30, 2018. See Oct. 30, 2018 U.S. Dep’t of Justice Process Receipt and Return (Doc. No. 5). Accordingly, the respondent’s answer or motion to dismiss the petition was due on December 31, 2018.2 Prior to that date, on December 21, 2018, the respondent moved for an additional twenty-one days to file his response to the petition. See Dec. 21, 2018 Resp’t’s Mot. for Extension of Time to Answer (Doc. No. 13). On January 25, 2019, before the court ruled on the respondent’s motion for an extension, the respondent filed a motion to dismiss (Doc. No. 14). On February 15, 2019, the court granted the respondent’s motion to extend the filing deadline. Discussion Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and the failure is shown by affidavit or otherwise, the clerk must 2December 29, 2018 fell on a Saturday, and thus the answer or response was due on December 31, 2018. See Fed. R. Civ. P. 6(a)(1)(C). Case 1:18-cv-00287-JL Document 21 Filed 08/09/19 Page 2 of 4
3 enter the party’s default.” Fed. R. Civ. P. 55(a). A party may be permitted to avoid default “by taking any act that ‘show[s] an intent to defend.’” Tabari v. Kane, No. CV-10-2419-PHX-DGC (LOA), 2011 U.S. Dist. LEXIS 69051, at *3, 2011 WL 2533512, at *1 (D. Ariz. Apr. 26, 2011) (citations omitted). Here, the respondent filed an appearance in this case the day after the USAO-NH was served, and filed a motion to dismiss which, while arguably late, demonstrates an intent to defend this action. The petitioner has not demonstrated any prejudice resulting from the short delay in the respondent’s filing of his motion to amend. Further, the entry of default or default judgment in this case would be inconsistent with the court’s general preference that disputes be resolved on their merits. Cf. generally, Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989) (“Allowing an entry of default to be set aside on a showing of reasonable justification is in keeping both with the philosophy that actions should ordinarily be resolved on their merits.”) (citations omitted). Accordingly, the district judge should deny petitioner’s motion (Doc. No. 15). Conclusion For the foregoing reasons, the district judge should deny Robinson’s motion for default judgment (Doc. No. 15). Any objection to this Report and Recommendation must be filed within Case 1:18-cv-00287-JL Document 21 Filed 08/09/19 Page 3 of 4
4 14 days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The 14-day period may be extended upon motion. Failure to file a specific written objection to the Report and Recommendation within the specified time waives the right to appeal the district court’s order. See Santos-Santos v. Torres- Centeno, 842 F.3d 163, 168 (1st Cir. 2016). ______________________________ Andrea K. Johnstone United States Magistrate Judge August 9, 2019 cc: Zhivago Robinson, pro se Seth R. Aframe, Esq. Case 1:18-cv-00287-JL Document 21 Filed 08/09/19 Page 4 of 4
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