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Bray v. Bank of America

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHWESTERN DIVISION


December 29, 2009

THOMAS H. BRAY, PLAINTIFF,
v.
BANK OF AMERICA, MERS, INC., COUNTRY WIDE HOME LOANS, ET. AL., DEFENDANTS.

The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge

ORDER DENYING MOTIONS TO COMPEL AND FOR DEFAULT JUDGMENT

On December 21, 2009, Plaintiff filed what the court construes as a motion to compel the production of documents he asserts are necessary to conduct a complete forensic audit. Additionally, he filed a "a motion to consider acts committed in ultra [vires], on entry of TILA documents pursuant to Rules of Evidence Rule 902(4)." Therein, he requests, inter alia, that the court "grant a default judgment based on federal offenses that the [defendants] have committed and . . . full financial recompense with clear title and no further legal proceedings." Given the relief he sees, the court shall construe this as a motion for default judgment.

The court generally employs the following protocol in civil actions. Once all of the defendants have filed a responsive pleading, the court will conduct a scheduling conference during which it will review with the parties its procedure for resolving discovery disputes and work with the parties to formulate a scheduling/discovery plan. Such a conference is scheduled in this case on January 29, 2010, at 10:00 a.m. at the U.S. Courthouse in Bismarck, North Dakota (courtroom #2). Plaintiff's demands for discovery in advance of this conference are premature. His motion to compel (Docket No. 17) is therefore DENIED without prejudice. Plaintiff court shall next address Plaintiff's motion for default judgment.

Under Rule 55 of the Federal Rules of Civil procedure, a motion for default judgment may only be granted in those instances in which "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules." Such is not the case here; Defendants have timely filed a responsive pleading. Plaintiff's motion for default judgment (Docket No 18) is therefore DENIED.

IT IS SO ORDERED.

20091229

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