UNITED STATES OF AMERICA v. FLOYD

Filing 12

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 9/30/2015. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 12-1890 (JBS/KMW)

v.
VERONICA FLOYD,

MEMORANDUM OPINION
Defendant.
SIMANDLE, Chief Judge:
In this federal student loan default action, Defendant
Veronica Floyd (hereinafter, “Defendant”) moves to vacate the
Default Judgment entered against her on September 5, 2012,
pursuant to Federal Rule of Civil Procedure 60(b)(4).
Docket Item 7.]
1.

[See

The Court finds as follows:

On March 28, 2012, Plaintiff the United States of

America (hereinafter, the “United States”) filed a Complaint
against Defendant in order to recover allegedly defaulted
federal student loans.

[See generally Docket Item 1]

Shortly

thereafter, the United States filed an affidavit of service,
reflecting that it served Defendant on April 5, 2012, by leaving
a copy of the Complaint at Defendant’s residence with her niece,
Taylor Watson.

[See generally Docket Item 3.]

Following

Defendant’s failure to answer the Complaint, the Clerk of Court
entered Default Judgment against her on September 5, 2012 in the

amount of $102,970.78, plus interest and costs.1

[See Docket

Item 6.]
2.

In the pending motion, Defendant claims that she

“obtained a consolidation” of all of her federal student loans
in 2013, and believed this consolidation included the loan for
which the Clerk of Court entered Default Judgment.
Br. 2; see also Floyd Aff. at ¶ 3.)

(See Def.’s

Defendant further alleges

that she never received notice or effective service of the
Complaint,2 and instead first learned of the Default Judgment
(and presumably the entire litigation) in June 2015, following a
title search in connection with her purchase of a new home.
(See Def.’s Br. 2-4; see also Floyd Aff. at ¶¶ 4-5, 7.)
Defendant therefore argues that she should be excused from the
Default Judgment pursuant to Federal Rule of Civil Procedure
60(b)(4), on the grounds that the United States rendered
ineffective service and pursued the default action by mistake
given Defendant’s purported loan consolidation.

(See Def.’s Br.

at 2-4.)

1

The Clerk of Court entered a Default upon the docket on the
same date.
2 Defendant specifically contends that the United States failed
to effectuate proper service, because the person upon whom the
United States effectuated service, Defendant’s niece, did not
reside at her residence at that time. (See Def.’s Br. at 2-4;
see also Floyd Aff. at ¶ 5.)
2 

3.

Federal Rule of Civil Procedure 55(c) states, in

relevant part, that the Court “may set aside a final default
judgment under Rule 60(b).”

Federal Rule of Civil Procedure

60(b), in turn, provides that the Court may, on motion and just
terms, “relieve a party 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)(1)-(6).3
4.

In applying this standard to default judgments, the

Court of Appeals for the Third Circuit has expressed a
preference for disposing of cases on merits, and specifically
disfavors default judgments.

See Harad v. Aetna Cas. & Sur.

Co., 839 F.2d 979, 982 (3d Cir. 1988).

Nevertheless, the

decision of whether to vacate the entry of a default judgment

3

Ordinarily, motions to vacate under Rule 60(b), Fed. R. Civ.
P., must be filed “no more than a year after the entry of
judgment or order or the date of the proceeding.” FED. R. CIV. P.
60(c)(1). No such time limitation, however, applies to a
judgment that is “void” at the outset, as Defendant claims here.
See FED. R. CIV. P. 60(b)(4).
3 

ultimately rests within the “sound discretion” of the district
court.

Tozer v. Charles A. Krause Milling Co., 189 F.2d 242,

244 (3d Cir. 1951).

In exercising this discretion, district

courts generally consider: (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. U.S. v. $ 55,518.05 in U.S. Currency, 728 F.2d
192, 194–195 (3d Cir. 1984).

However, because the entry of

default judgment presumes effective service of process, failure
to effect proper service warrants, without more, relief from the
default judgment.

See Gold Kist, Inc. v. Laurinburg Oil Co.,

Inc., 756 F.2d 14, 19 (3d Cir. 1985) (noting that “[a] default
judgment entered when there has been no proper service of the
complaint is, a fortiori, void, and should be set aside”).
5.

The affidavit of service filed by the United States in

this instance reflects that it served Defendant through her
niece, Taylor Watson, an individual identified as “M[ale]” and
somewhere between the ages of 14 and 20.

[Docket Item 3.]

(The

affidavit’s discrepancy between describing Taylor Watson as
Defendant’s “niece” and describing her as “male” is
unexplained.)
6.

Rule 4(e)(2)(B), Fed. R. Civ. P., authorizes service

upon an individual by “leaving a copy of [the summons and
complaint] at the individual’s dwelling place or usual place of
4 

abode with someone of suitable age and discretion who resides
there.”

New Jersey Court Rule 4:4-4(a)(1) alternatively

authorizes service on a competent individual, at least fourteen
years old, who is a member of the household then residing at the
defendant’s “dwelling place” or “usual place of abode.”4

These

rules, in other words, consistently require that service be made
upon an actual resident of the household, rather than simply a
visitor.

See Weeks v. Sheppard, No. A-6130-04T3, 2006 WL

709137, at *1 (N.J. Super. Ct. App. Div. Mar. 22, 2006) (finding
service upon a visitor ineffective); Berger v. Paterson Veterans
Taxi Serv., 581 A.2d 1344, 1345-47 (N.J. Super. Ct. App. Div.
1990) (same); see also Prudential Ins. Co. of Am. v. Bramlett,
No. 08-119, 2009 WL 2634644, at *5 (D.N.J. Aug. 24, 2009)
(explaining that the federal service rules require residency)
7.

Here, Defendant certifies, under penalty of perjury,

that her niece did not reside at her residence at the time of
service (nor at any other period).

(See Floyd Aff. at ¶ 5.)

Rather, she appears to have been only a visitor (see id.), and
the affidavit of service provides no indication that Ms. Watson
identified herself any differently to the process server.5

4

[See

Rule 4(e)(1), Fed. R. Civ. P., permits a plaintiff to
alternatively effectuate service “pursuant to the law of the
state in which the district court is located.”
5 Nor does the United States’ opposition compel any contrary
conclusion. Indeed, the United States’ opposition only states,
in relevant part, that counsel served Defendant through “a
5 

Docket Item 3.]

The Court therefore finds the United States’

April 5, 2012 service ineffective, and concludes that the
September 5, 2012 Default Judgment must be set aside as void
pursuant to Rule 60(b)(4), Fed. R. Civ. P.6

See Gold Kist, Inc.,

756 F.2d at 19.
8.

An accompanying Order will be entered, and Defendant

shall file her answer with seven (7) days of the entry of this
Order.

September 30, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

female, 17 years of age, whom Defendant admits was a relative.”
(Francisco Cert. at ¶ 10.) Nevertheless, the applicable rules
of service require residency, not a familial relationship.
6 As a result, the Court need not reach Defendant’s argument
concerning the calculation of the default judgment. (See
generally Def.’s Br. at 2.)
6