SMITH v. KROESEN

Filing 63

OPINION. Signed by Judge Noel L. Hillman on 9/27/2016. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PAUL M. SMITH,
Plaintiff,
v.
JOHN A. KROESEN,
Defendant.

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Civ. A. No. 10-5723 (NLH)(AMD)

OPINION

APPEARANCES:
DOMINIC ROMAN DEPAMPHILIS
D'AMATO LAW FIRM PC
2900 FIRE ROAD, SUITE 200
EGG HARBOR TOWNSHIP, NJ 08234
On behalf of plaintiff
ALAN C. MILSTEIN
SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC
EASTGATE CORPORATE CENTER
308 HARPER DRIVE
SUITE 200
MOORESTOWN, NJ 08057
On behalf of defendant
HILLMAN, District Judge
Pending before the Court is the motion of defendant, John A.
Kroesen, to vacate the entry of default judgment against him in
favor of plaintiff, Paul Smith, for injuries plaintiff sustained
while playing in a rugby match on April 10, 2010. 1

Plaintiff, a

member of the Jersey Shore Sharks rugby team, was playing in a
rugby match against Old Gaelic Rugby Football Club, which was

1

Also pending is plaintiff’s motion for costs.

coached by former defendant Mark Cooley.

A rugby match is

comprised of two, 40-minute halves, and it is typical to have 70
pile-ups of players and over 100 collisions with other players.
During the first half of the match that day, plaintiff and a
player from Old Gaelic got into a “ruck,” which resulted in an
altercation between Plaintiff and a player from Old Gaelic.

The

two players rolled on the ground, and plaintiff gave the Old
Gaelic player a short jab to the ribs.

Although the play had

moved to the other end of the field, another Old Gaelic player,
defendant John Kroesen, saw the fight and, according to plaintiff,
came from behind and intentionally kicked him in the face.
Plaintiff sustained a left orbital fracture and a nasal fracture,
for which plaintiff underwent surgery.
Plaintiff filed suit against Kroesen claiming that Kroesen’s
conduct was intentional assault and battery, or at a minimum,
grossly negligent. 2

Plaintiff then filed an amended complaint,

adding Cooley as a defendant, claiming that Cooley was grossly
negligent in his coaching of the Old Gaelic team, and was
responsible for plaintiff’s injuries caused by Kroesen.

Kroesen

did not answer plaintiff’s complaint, and the clerk entered

2

This Court may exercise subject matter jurisdiction over the
action pursuant to 28 U.S.C. § 1332 because there is complete
diversity of citizenship between the parties and the amount in
controversy exceeds $75,000.
2

default against him.

Plaintiff and Cooley went to arbitration to

resolve plaintiff’s claims against Cooley, but following the
arbitrator’s decision, plaintiff sought a trial de novo.
Since then, the Court has issued four comprehensive Opinions
in this case, which was filed on November 3, 2010.

The first

concerned the establishment of subject matter jurisdiction (Docket
No. 36, 37); the second granted summary judgment in favor of the
Mark Cooley, coach of the Old Gaelic Rugby team (Docket No. 40,
41); the third denied plaintiff’s motion for default judgment
against Kroesen and directed plaintiff to file a second amended
complaint and re-serve it on Kroesen (Docket No. 43, 44); and the
fourth, after plaintiff complied with the third Opinion and
obtained a Clerk’s entry of default against Kroesen, granted
plaintiff’s motion for default judgment (Docket No. 53, 54).
In the fourth Opinion, the Court noted that in his motion for
default judgment, plaintiff made a demand for compensatory damages
in the amount of $375,000 and punitive damages in the amount of
$125,000.

The Court found that plaintiff’s documents - medical

records, medical bills, and photographs - demonstrated that he was
entitled to compensatory damages for his injuries, and observed
that plaintiff endured significant pain and suffering as a result
of being kicked in the face, including the need for surgical
repair of significant facial fractures resulting in bone grafts
3

and the use of plates and screws.

The Court also recognized that

plaintiff suffered from a minor concussion, he continued to
experience numbness, and he had permanent scarring.

The Court

found, however, that plaintiff did not provide any support,
through case law, affidavits, or otherwise, for his specific
demand of $375,000 and for the imposition of punitive damages.
The Court afforded plaintiff the opportunity to submit sufficient
evidence to support his claim for damages.
On October 16, 2015, plaintiff submitted a comprehensive
package of supporting documents to establish the entitlement to
his requested damages.

This package included the results of a New

Jersey state and nationwide LEXISNEXIS search for comparable jury
verdicts and settlements, and a certification of plaintiff as to
his pain and suffering, along with additional supporting medical
records. (Docket No. 56.)

The Court thoroughly reviewed

plaintiff’s submissions, and on January 6, 2016, determined that
an award of $375,000.00 in compensatory damages and $125,000.00 in
punitive damages was reasonable and justified.

(Docket No. 57.)

On February 15, 2016, Kroesen filed the instant motion to set
aside the judgment entered against him.

Plaintiff has opposed

Kroesen’s motion, and also has a pending motion for costs.

For

the reasons expressed below, Kroesen’s motion will be denied, and
plaintiff’s motion for costs will be granted.
4

DISCUSSION
The court may set aside an entry of default for good cause,
and it may set aside a final default judgment under Rule 60(b).
Fed. R. Civ. P. 55.

Rule 60(b) provides,

On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
It appears that Kroesen has moved to set aside the judgment
entered against him pursuant to Rule 60(b)(1) and Rule 60(b)(6).
For a motion based on Rule 60(b)(1), a three-part test is applied:
(1) whether the plaintiff will be prejudiced; (2) whether the
defendant has a meritorious defense; and (3) whether the default
was the result of the defendant's culpable conduct.
5

Budget

Blinds, Inc. v. White, 536 F.3d 244, 256 (3d Cir. 2008) (quoting
United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195
(3d Cir. 1984)).

For a motion based on Rule 60(b)(6), the three-

part test does not apply, and instead a court must consider
whether the defendant has demonstrated the existence of
“extraordinary circumstances” that justify reopening the judgment.
Budget Blinds, 536 F.3d at 255, 257 n.16 (citations omitted).

The

“‘decision to vacate a default judgment is left to the sound
discretion of the trial court.’”

United States v. $90,745.88

Contained in Account No. 9506826724 Held in the Name of &/or for
the Ben. of Amiri Mbubu Auto Sales, LLC, at Bank of Am., 1125, 465
F. App'x 143, 145 (3d Cir. 2012) (quoting Harad v. Aetna Cas. &
Sur. Co., 839 F.2d 979, 982 (3d Cir. 1988)).

Defendant is not

entitled to relief under either provision.
The Court begins with the issue of whether Kroesen has a
meritorious defense to plaintiff’s claims, which is a “‘threshold
issue in opening a default judgment.’”
F.2d at 982).

Id. (quoting Harad, 839

Kroesen admits in his affidavit that he

intentionally kicked plaintiff.

Kroesen states:

2. At some point during the game, Paul Smith began fighting
with a member of my team and was on top of one of my
teammates hitting him with his fist.
3. I approached the two of them and kicked Mr. Smith once to
try to get him off of my teammate.

6

(Docket No. 61 at 1.)
Kroesen’s defense is “Mr. Smith started the altercation with
my teammate and all I did was to try to stop Mr. Smith from
hitting my teammate,” he “did not intend to injur[e] Mr. Smith in
any way,” and “Mr. Smith signed a Waiver and Release of Liability,
which I also signed.”

(Id. at 2.)

None of these purported

defenses absolve Kroesen of liability for assault, battery, and
gross negligence.

See Docket No. 53 at 8-10 (setting forth the

elements of assault, battery, and gross negligence).

Kroesen

admittedly kicked plaintiff in the face, which contact was
intentionally perpetrated, non-consensual, and beyond the bounds
of typical rugby play.
While it is true that the defense of justification to assault
and battery exists in New Jersey for a third party protecting
another including a social friend, there are limits to the
defense.

State v. Chiarello, 69 N.J. Super. 479 (App. Div. 1961).

First, the force used must be commensurate to the harm sought to
be prevented.

Id. at 486.

While Kroesen says in his affidavit

that Smith was on top of his friend and hitting him with his fist,
nothing in the description of the altercation explains why a kick
to the head was a necessary or justifiable means under the
circumstances.

The medical records show that this was no ordinary

kick – Plaintiff suffered significant injuries.
7

Moreover, the defense is derivative.

Plaintiff must show

that his friend himself would be justified in asserting the
defense.

Id. at 484 (before one person has right to use force in

defense or aid of another, the circumstances must show that the
person on whom the assault is being made has right of self-defense
and, therefore, right to use the same force and intervention must
be necessary for the protection of the third person).

While

Defendant says Plaintiff started the altercation with his
unidentified friend, there is no affidavit from Defendant’s
friend, or even a third party witness, who offers to testify, or
any other facts alleged or pled tending to show, that Defendant’s
friend was the victim of an assault entitled to self-defense.
And while allegations in an answer may be enough to justify
the opening of a default judgment, the defense must be more than
hypothetical or possible.

It must be supported by specific facts

which if believed would establish a complete defense.

Self-

serving conclusory statement are not enough. United States v.
$55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984).
Here, the defense amounts to a claim that Plaintiff was hitting my
friend with his fist so I kicked him in the head (causing
significant facial injuries requiring surgery and permanent

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It is simply too little, too late. 3

implants).

As for the release, Defendant has failed to produce a copy so
the Court is unable to determine if it would in fact support a
defense.

Common sense and existing law suggest otherwise.

Such

releases typically absolve the sponsor of such events from
liability rather than individuals who participate in the event.
Moreover, as Plaintiff points out, to the extent such releases
seek to confer immunity for intentional torts they are void as
against public policy.

Stelluti v. Casapenn Enterprises, LLC, 1

A.3d 678, 689 (N.J. 2010) (citation omitted) (“An agreement
containing a pre-injury release from liability for intentional or
reckless conduct also is plainly inconsistent with public
policy.”); see also Vitale v. Schering-Plough Corp., --- A.3d ---,
2016 WL 4427430, at *4 (N.J. Super. Ct. App. Div. Aug. 22, 2016)
(citation omitted) (“Exculpatory agreements for negligent conduct
also violate public policy in a variety of settings . . . . .”).
Consequently, the Court does not find that Kroesen has a
meritorious defense to plaintiff’s claims against him.

3

We note that Defendant’s motion is procedurally improper and could
be denied on that basis alone. Defendant did not submit his
affidavit in support with his original motion with his motion and
then not until after Plaintiff had filed his opposition. This
precluded Plaintiff from having a fair opportunity to respond. A
moving party may not use the opportunity for reply to provide
materials that should have been included in its original motion.
9

Turning next to the third part of the test under Rule
60(b)(1), Kroesen’s default was the result of his own culpable
conduct.

In his affidavit, Kroesen relates the following with

regard to his notice of plaintiff’s lawsuit against him:
5.
Apparently, sometime in 2010, Mr. Smith filed suit in
this Court against a number of defendants.
6.
Occasionally, I would receive correspondence indicating
that certain activities would take place in the lawsuit
requiring Mr. Smith to add or delete parties from the
lawsuit.
7.
In or about December 2014, a Sheriff served a Complaint
on me personally.
8.
This was at least four (4) years after the lawsuit was
filed.
9.
I did not know what to do with the Complaint and did not
consult with an attorney and waited to go to Court to defend
myself.
10.
I had never been sued before, nor sued anyone, and had
never seen a Complaint or legal paper like the one I
received.
11.
I never heard nor received any further correspondence
advising me to be in Court at a particular date, place or
time.
12.
I understand that a Default Judgment was entered
against me on January 6, 2016.
13.
me.

I received no notice of an Entry of Default against

14.
In fact, I received nothing until February 1, 2016
advising that a Judgment was entered against me in the amount
of Five Hundred Thousand Dollars ($500,000.00.).
(Docket No. 61 at 1-2.)
10

Kroesen admits that he was aware of the lawsuit after it was
filed in 2010, 4 and that he was personally served with plaintiff’s
second amended complaint in December 2014.

Kroesen took no action

relative to the lawsuit despite being aware of it since 2010, or
after being personally served again in 2014 with a second amended
complaint, until he received notice in February 2016 that default
judgment had been entered against him.

Even accepting as true

that he had never been sued, was unfamiliar with the documents
sent to him, 5 and was never advised to appear in court on a

4

The brief filed by Kroesen’s counsel in support of his motion to
vacate default relates that Kroesen was not served with the
amended complaint that was filed in November 2011. (Docket No. 59
at 1.) Kroesen does not state that he was not personally served
with the original complaint that was filed in November 2010.
Thus, under Fed. R. Civ. P. 5(a)(2), plaintiff was not required to
personally serve the amended complaint on Kroesen.
5

In anticipation
when he is served
which is required
constitute proper
the defendant:

that a defendant may be unaware of what to do
with a complaint, the accompanying summons,
to be served on the defendant in order to
service, see Fed. R. Civ. P. 4(c)(1), informs

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not
counting the day you received it) −− or 60 days if
you are the United States or a United States Agency, or an
office or employee of the United States described in
Fed. R. civ. P. 12 (a)(2) or (3) −− you must serve on the
plaintiff an answer to the attached complaint or a motion
under rule 12 of the Federal Rules of Civil Procedure. The
answer or motion must be served on the plaintiff or
plaintiff’s attorney, whose name and address are:
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particular date, ignoring legal documents and service of a
complaint simply because they were new and unfamiliar cannot
absolve a properly served defendant from the ramifications of
burying his head in the sand.

See, e.g., Tr. of Liberace

Revocable Trust v. Silver Screen Video, Inc., 1992 WL 349629, at
*2 (D.N.J. Nov. 2, 1992) (citing United Bank of Kuwait P.L.C. v.
Enventure Energy, 755 F. Supp. 1195, 1205 (S.D.N.Y. 1989)) (“ A
default is deemed willful where a defendant simply ignores the
complaint without action.”); Braverman Kaskey, P.C. v. Toidze, 599
F. App'x 448, 453 (3d Cir. 2015) (finding that the district court
did not abuse its discretion in denying Toidze's Rule 55(c) motion
to vacate the default judgment when it determined that Toidze’s
conduct in ignoring the action was culpable and not merely
negligent, because BK emailed Toidze at [e-mail] in
an attempt to notify her of the pending litigation, and despite
her claim that this email address was abandoned, her present
counsel used that address to communicate with her in September
2012, long after BK had emailed Toidze at the same address in
November of 2010).

Thus, Kroesen’s inaction as described in his

If you fail to respond, judgment by default will be entered
against you for the relief demanded in the complaint. You
also must file your answer or motion with the court.
(See Docket No. 2, emphasis added.)
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affidavit is sufficient to establish culpable conduct.
The record demonstrates, however, that Kroesen had more
notice of the proceedings over the course of four years than he
admits in his affidavit.

An adult residing at Kroesen’s home

address was personally served with the original complaint in 2010.
(Affidavit of Service, Docket No. 3.)

Kroesen was served with a

copy of plaintiff’s Request to Enter Default filed on January 27,
2011 by United States Postal Service, first class mail, at 6356
Galleon Drive, Mechanicsburg, Pennsylvania.
23.)

(Docket No. 60-5 at

Kroesen was mailed a copy of a letter dated March 26, 2012

concerning the litigation from Clark B. Leutze, Esquire, defense
counsel for Mark Cooley.

(Docket No. 60-5 at 42.)

On April 10,

2014, plaintiff mailed to Kroesen a copy of his first motion for
default judgment.

(Docket No. 42-1.)

After the Court denied plaintiff’s first motion for default
judgment motion and ordered plaintiff to serve an amended
complaint on Kroesen, plaintiff did so on January 13, 2015 by
personally serving Kroesen at his Mechanicsburg, Pennsylvania
address. (Affidavit of Service, Docket No. 50.)

Kroesen failed to

respond, and Kroesen was mailed a copy of plaintiff’s Request to
Enter Default on March 10, 2015. (Docket No. 51 at 2.)

On June

23, 2015, plaintiff mailed to Kroesen a copy of his motion for
default judgment.

(Docket No. 52-1.)
13

After the Court entered

judgment in plaintiff’s favor on August 18, 2015, plaintiff mailed
to Kroesen his motion for costs on February 1, 2016.
The motion for costs, which indicated that a judgment had
been entered against him, finally spurred Kroesen into action.
Two complaints and six other mailings, including two clerk’s
entries of default and two motions for default judgment, were all
delivered to the same Mechanicsburg, Pennsylvania address that the
motion for costs was mailed to.

This further evidences Kroesen’s

willful decision to ignore this action, and weighs against
vacating default judgment. 6
Finally, with regard to prejudice to plaintiff if the default
judgment is set aside, it is clear that default judgment is the
only remedy available to plaintiff on his claims against a
defendant who fails to respond to two complaints and numerous
correspondence over the course of almost five years.

This Court

even afforded Kroesen a second chance to take his head out of the
sand in October 2014 by denying plaintiff’s first motion for
default judgment and directing the service of a second amended

6

Kroesen’s failure to respond to numerous communications from
plaintiff also negates a finding that extraordinary circumstances
warrant the default judgment to be set aside. See Budget Blinds,
Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008) (noting that
extraordinary circumstances rarely exist when a party seeks relief
from a judgment that resulted from the party's deliberate
choices).
14

complaint.

When Kroesen failed to respond to that complaint, and

ignored the notice of a pending motion for default judgment
against him, there is nothing more plaintiff or this Court could
do without prejudicing plaintiff.
Even though there is a general policy disfavoring default
judgments and encouraging decisions on the merits, Harad, 839 F.2d
at 981, the default judgment procedure exists precisely for cases
like this one.

Kroesen was well-aware of plaintiff’s claims

against him for five years, but he refused to respond until a
$500,000.00 judgment was entered against him.

If Kroesen’s non-

appearance served as an acquiescence to his liability for
plaintiff’s injuries, to the extent he now wishes to challenge the
determination that plaintiff is entitled to $375,000.00 in
compensatory damages and $175,000.00 in punitive damages, Kroesen
was also afforded more than a fair opportunity to present his
objection to plaintiff’s request for damages.

More specifically,

Kroesen had from June 2015, when plaintiff moved for default
judgment on the second amended complaint in which he requested
$500,000 in damages (Docket No. 52-3), up until the Court’s entry
to default judgment on January 6, 2016, to appear and contest the
amount of plaintiff’s requested damage award.

The culpability for

plaintiff’s damage award, as well as liability, rests squarely on
Kroesen.
15

CONCLUSION
Accordingly, the Court will deny Kroesen’s motion to vacate
the default judgment entered against him.
plaintiff’s motion for costs.

The Court will grant

An appropriate Order will be

entered.

Date:
September 27, 2016
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

16