COTTRELL et al v. NORMAN et al

Filing 77

OPINION FILED. Signed by Judge Noel L. Hillman on 10/1/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
MARYANN COTTRELL and RICHARD
HOLLAND,
Plaintiffs,

Civil No. 12-1986 (NLH/JS)

v.
OPINION
KEYSHONNA NORMAN,
Defendant.
__________________________________
APPEARANCES:
Maryann Cottrell and Richard G. Holland
31 South Academy Street
Glassboro, New Jersey 08028
Pro Se Plaintiffs
Stephen Guice
Law Offices of Stephen Guice, P.C.
413 Clements Bridge Road
Barrington, NJ 08007
Attorney for Defendant
HILLMAN, District Judge
Presently before the Court is Defendant Keyshonna Norman’s
Motion to Vacate Clerk’s Entry of Default.

For the reasons that

follow, the motion will be granted.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The full factual background of this case was recently set

forth in Cottrell v. Norman, No. 12-1986, 2014 WL 3729215, at *1
(D.N.J. July 25, 2014).

In sum and substance, this case

concerns events which took place on April 1, 2010 on the Rowan
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University campus.

On that date, Plaintiffs noticed Norman’s

car parked in a handicap parking space with an expired handicap
placard.

This led to a verbal altercation between Plaintiff

Maryann Cottrell and Norman.

Both parties filed criminal

complaints against each other in municipal court but eventually
all charges were withdrawn.
On April 2, 2012, Plaintiffs filed a complaint against
Norman and various Rowan individuals.
Defendants filed motions to dismiss.

Both Norman and the Rowan
See Doc. Nos. 41, 49.

In

light of Magistrate Judge Schneider’s Order granting Plaintiffs’
motion to amend on December 4, 2013 [Doc. No. 59], the Court
denied the Defendants’ motions to dismiss without prejudice.
See Dec. 6, 2013 Order [Doc. No. 60].

Judge Schneider further

ordered that all Defendants were required to respond to
Plaintiffs’ Second Amended Complaint by January 6, 2014.
On December 24, 2013, the Rowan Defendants filed a renewed
motion to dismiss [Doc. No. 61] which was granted.
2014 Op. and Order [Doc. Nos. 66, 67].

See July 25,

Norman did not renew her

motion or otherwise respond to Plaintiffs’ Second Amended
Complaint.

On April 20, 2015, Plaintiffs requested default

judgment be entered against Norman for failing to respond to
Plaintiffs’ Second Amended Complaint by January 6, 2014 per
Judge Schneider’s Order.

[Doc. No. 69].

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The Clerk entered

default the following day.

On May 11, 2015, Norman filed the

instant motion to set aside default judgment.
II.

STANDARD OF REVIEW

Default judgment is governed by Federal Rule of Civil
Procedure 55, which states, in relevant part, as follows:
When a party against whom a judgment for
affirmative relief is sought has failed to plead
or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the
party's default.
Fed. R. Civ. P. 55(a).

After default is entered pursuant to

Rule 55(a) the plaintiff may seek the court's entry of default
judgment under either Rule 55(b)(1) or Rule 55(b)(2).
Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance Club, Inc.,
175 F. App'x 519, 521, n.1 (3d Cir. 2006) (citing 10A Wright,
Miller & Kane, Fed. Prac. & Proc. § 2682 at 13 (3d ed. 1998)).
After default judgment is entered, “the factual allegations of
the complaint, except those relating to the amount of damages,
will be taken as true.”

Comdyne I, Inc. v. Corbin, 908 F.2d

1142, 1149 (3d Cir. 1990) (citing 10 Wright, Miller & Kane, Fed.
Prac. & Proc. § 2688 at 444 (2d ed. 1983)).
Rule 55 of the Federal Civil Rules likewise provides the
mechanism for setting aside the entry of default.

More

specifically, Rule 55(c) provides as follows: “The court may set
aside an entry of default for good cause[.]”
55(c).

In determining whether good cause exists to set aside an
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Fed. R. Civ. P.

entry of default, the court should 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.”

World Entm't Inc. v.

Brown, 487 F. App'x 758, 761 (3d Cir. 2012) (citation omitted).
Although district courts are urged to make explicit findings
concerning all of these factors when considering a motion to
vacate entry of default, the second factor is often considered
to be the most important inquiry.

Nat'l Specialty Ins. Co. v.

Papa, No. 11–2798, 2012 WL 868944, at *2 (D.N.J. Mar. 14, 2012)
(Bumb, J.) (citing United States v. $55,518.05 in U.S. Currency,
728 F.2d 192, 194–95 (3d Cir. 1984)).

To establish culpable

conduct the defendant must have acted willfully or in bad faith.
World Entm't Inc., 487 F. App'x at 761 (citing Hritz v. Woma
Corp., 732 F.2d 1178, 1182–83 (3d Cir. 1984)).

Moreover, as is

the case with respect to a court's entry of default judgment, a
clerk's entry of “‘[d]efault is not favored and all doubt should
be resolved in favor of setting aside default and reaching a
decision on the merits.’”

CGB, 2001 WL 253745 at *4 (quoting 99

Cents Stores v. Dynamic Distrib., No. 97–3869, 1998 WL 24338
(E.D. Pa. Jan. 22, 1998)); see also Papa, 2012 WL 868944 at *2;
$55,518.05 in U.S. Currency, 728 F.2d at 194–95.

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III. DISCUSSION
“Adjudication of a motion to set aside default is left to
the discretion of the district court.”

Toy v. Hayman, No. 07–

3076, 2008 WL 5046723, at *3 (D.N.J. Nov. 20, 2008) (citing
Bailey v. United Airlines, 279 F.3d 194, 204 (3d Cir. 2002)).
As indicated above, in reviewing such a motion, the Court must
consider three factors prior to vacating an entry of default.
The first factor requires the Court to consider whether
lifting the default would prejudice Plaintiffs.

“Prejudice

under this prong only accrues due to a ‘loss of available
evidence, increased potential for fraud or collusion, or
substantial reliance upon the judgment.’”

Toy, 2008 WL 5046723

at *3 (citing Feliciano v. Reliant Tooling Co., 691 F.2d 653,
656–57 (3d Cir. 1982) (internal quotation marks omitted).
Plaintiffs argue that they would be prejudiced if default was
vacated because they have not received any discovery from Norman
and any potential evidence might be lost.
7 [Doc. No. 76].

See Pls.’ Opp. Br. at

However, Plaintiffs also admit that they have

video of the incident, police reports, video documentation of
Norman’s expired temporary placard, a letter from the Woodbury
police regarding Norman’s temporary placard, and a copy of the
charges filed against Cottrell.

While Plaintiffs have cited the

ample evidence they have produced and received they have not
indicated what further discovery they will request from Norman
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which is potentially lost.

As such, the Court is not persuaded

that Plaintiffs will suffer prejudice in the form of potential
lost evidence.

See Barnett v. New Jersey Transit Corp., No. 10-

3872, 2011 WL 6130409, at *1 (D.N.J. Dec. 7, 2011) (rejecting
plaintiff's conclusory argument that it will be prejudiced if
default is vacated because the memories of potential witnesses
will have faded given the amount of time that has passed since
the relevant incident).

Further, Plaintiffs do not argue, and

there is no evidence to suggest, that Plaintiffs have
substantially relied on the default or that there is an
increased likelihood of fraud.

Accordingly, the first factor

weighs in favor of setting aside default.
The Court next considers whether Norman has raised a
meritorious defense.

“A meritorious defense is one that, if

established at trial, would constitute a complete defense to the
action.”

Id. at *4 (citing $55,518.05 in U.S. Currency, 728

F.2d at 195).

In order to satisfy this second factor, “[t]he

defaulting party must [ ] set forth specific facts demonstrating
the facial validity of the defense.”

Id.

Here, Norman has sufficiently shown that she has a
meritorious defense if the case proceeds to trial.

Plaintiffs

allege three causes of action against Norman: a malicious
prosecution claim and violations of the Americans with
Disability Act, 42 U.S.C. § 12101, et seq., and the New Jersey
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Law Against Discrimination, N.J.S.A. 10:5-12.

Norman argues

that Plaintiffs’ three claims fail to state a claim.
To state a claim for malicious prosecution a plaintiff must
show: “(1) that the criminal action was instituted by the
defendant against the plaintiff, (2) that it was actuated by
malice, (3) that there was an absence of probable cause for the
proceeding, and (4) that it was terminated favorably to the
plaintiff.”

Brunson v. Affinity Fed. Credit Union, 199 N.J.

381, 393-94 (2009).

Norman argues that Plaintiffs fail to plead

each of the four elements because: (1) both parties filed
criminal complaints; (2) the criminal action was not actuated by
malice; (3) Norman had probable cause to seek criminal action;
and (4) the criminal proceeding was not terminated in favor of
Plaintiffs, but were withdrawn.
Further, Norman argues Plaintiffs’ ADA and NJLAD claims
must be dismissed because Plaintiffs lack standing to bring such
claims as they are not disabled persons.

See July 25, 2014 Op.

and Order [Doc. No. 66, 67] (finding Plaintiffs lack standing to
bring ADA and NJLAD claims).

Therefore, Norman has raised a

meritorious defense and thus the second factor weighs in favor
of setting aside default.
Last, the Court considers whether the entry of default was
the result of the Norman’s culpable conduct.

Norman does not

dispute that she failed to respond to Plaintiffs’ Second Amended
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Complaint in the time prescribed by Judge Schneider’s Order.
Norman does not clearly explain why she failed to respond to
Plaintiffs’ Second Amended Complaint (or refile her motion to
dismiss) other than to say that she is “a young woman, recently
out of college, who has since relocated to Maryland.”
Br. at 20 [Doc. No. 71].

Def.’s

Plaintiffs argue that Norman has

provided no explanation for the “intentional delay.” Pls.’ Br.
at 6. However, the record does not indicate that Norman’s
actions, while negligent, rise to the level “flagrant bad
faith.”

See Papa, 2012 WL 868944 at *4 (citing Emcasco Ins. Co.

v. Sambrick, 834 F.2d 71, 73 (3d Cir. 1987)).

Further, the

Third Circuit has stated its preference that cases be disposed
of on the merits whenever practicable.

Hritz, 732 F.2d at 1181.

While there is nothing in the record to indicate “flagrant bad
faith,” Norman failed to comply with Judge Schneider’s January
6, 2014 deadline.

Thus, the third factor weighs neutrally.

In summary, the factors weigh in favor of vacating the
default judgment.

Accordingly, Norman’s Motion to Vacate the

Clerk's Entry of Default will be granted.

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Norman will have twenty-one days from the date of the entry
of this Opinion and accompanying Order to file her responsive
papers. In light of the Court’s ruling, Plaintiffs’ motion for
default judgment [Doc. No. 76] is denied as moot.

Dated: October 1, 2015

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

At Camden, New Jersey

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