Case Information
*1 2:05-cv-02172-MPM-DGB # 29 Page 1 of 2 E-FILED Thursday, 16 February, 2006 01:32:30 PM Clerk, U.S. District Court, ILCD UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION
_____________________________________________________________________________ DENNY PATRIDGE and JUDY PATRIDGE, )
)
Plaintiffs, )
) vs. ) Case No. 05-2172
)
J.K. HARRIS COMPANY, BOBBIE MICKEY, )
and LARRY PHILLIPS, )
)
Defendants. ) ______________________________________________________________________________
OPINION ______________________________________________________________________________
On January 27, 2006, the Magistrate Judge filed a Report and Recommendation (#22) in the above cause. The Magistrate Judge recommended that the Defendants’ Motion to Dismiss (#10) be GRANTED in part and DENIED in part.
On February 6, 2006, Defendants filed their Objection to the Report and Recommendation (#24). Plaintiffs also filed an Objection to the Report and Recommendation (#25) and February 9, 2006. This court has reviewed the Magistrate Judge’s reasoning and the parties’ objections. After a thorough and careful de novo review, this court agrees with and accepts the Report and Recommendation of the Magistrate Judge.
Plaintiffs have also filed motions for default judgment (#26, #27, #28) asserting that default judgment is warranted because Defendants have not yet filed an answer to Plaintiffs’ complaint. As Plaintiffs are obviously aware, Defendants opted to file a motion to dismiss rather than an answer. While an amended complaint was filed during the pendency of the motions to dismiss, this was filed only in an attempt to correct jurisdictional deficiencies. To file a motion for default judgment in these circumstances is nothing short of ridiculous.
2:05-cv-02172-MPM-DGB # 29 Page 2 of 2 IT IS THEREFORE ORDERED:
(1) Defendants’ Motion to Dismiss (#10) is GRANTED in part and DENIED in part. The motion is denied as to Counts I and II based upon collateral estoppel, granted as to Count II for failure to allege fraud with sufficient particularity, and granted as to the claims of breach of contract against Defendants Mickey and Phillips in Count I. Plaintiffs are allowed fourteen days to file an amended complaint to state a claim for fraud in Count II. Furthermore, Plaintiffs are allowed fourteen days to file an amended complaint which properly alleges subject matter jurisdiction. Failure to properly allege subject matter jurisdiction within fourteen days will result in dismissal of this action.
(2) Plaintiffs’ Motions for Default Judgment (#26, #27, #28) are DENIED.
(3) This case is referred to the Magistrate Judge for further proceedings.
ENTERED this 16th day of February, 2006 s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE