BELL v. TOWNSHIP OF QUINTON

Filing 18

MEMORANDUM OPINION AND ORDER granting Defendant's 13 Motion for Extension of Time to Answer. ORDERED that Defendant shall file an answer to the complaint within 14 days of the date of this Memorandum Opinion and Order. ORDER denying Plaintiff's 15 Request for Entry of Default and Plaintiff's 17 Cross-Motion for Default Judgment. Signed by Judge Noel L. Hillman on 1/15/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
GARY L. BELL, SR.,
Plaintiff,

Civil No. 14-1789 (NLH/KMW)

v.
MEMORANDUM OPINION AND ORDER
TOWNSHIP OF QUINTON,
Defendant.
__________________________________
APPEARANCES:
Richard Etienne Incremona, Esq.
Helmer Comley & Kasselman
92 West Main Street
Freehold, New Jersey 07728
Counsel for Plaintiff
Allan E. Richardson, Esq.
Linda A. Galella, Esq.
Richardson & Galella
142 Emerson Street
Suite B
Woodbury, New Jersey 08096
Counsel for Defendant
HILLMAN, District Judge
Presently before the Court are the motion [Doc. No. 13] of
Defendant, Township of Quinton, seeking an extension of time to
file an answer pursuant to Federal Rule of Civil Procedure 6(b),
and the cross-motion [Doc. No. 17] of Plaintiff, Gary L. Bell,
Sr., seeking entry of default judgment against Defendant

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pursuant to Federal Rule of Civil Procedure 55(b); and it
appearing that:
1.

Pursuant to Federal Rule of Civil Procedure 81(c),

after an action is removed to federal court, a defendant who did
not answer before removal must file an answer or otherwise
defend within the longest of these periods: (A) twenty-one days
after receiving -- through service or otherwise -- a copy of the
initial pleading, (B) twenty-one days after being served with
the summons for an initial pleading on file at the time of
service, or (C) seven days after the notice of removal is filed.
2.

Plaintiff represents that counsel for the Township of

Quinton, Elizabeth M. Garcia, Esq., was served on February 25,
2014, and Township of Quinton Mayor, Joseph Donelson, was served
on March 10, 2014.
20, 2014.

Defendant filed a Notice of Removal on March

Despite being served with the complaint, Defendant

has not yet filed an answer in this matter.
3.

Plaintiff filed a motion to remand on April 17, 2014.

Defendant filed opposition to the motion to remand on April 21,
2014.

The Court issued an Order to Show Cause in connection

with Plaintiff’s motion to remand, which Plaintiff responded to
on November 21, 2014, and Defendant responded to on November 26,
2014.
4.

The Court entered an Opinion and Order on December 17,

2014 denying Plaintiff’s motion for remand.
2

On December 23,

2014, less than one week later, Defendant filed the motion to
extend time to answer presently before the Court.

Counsel for

Defendant represents that a request was made to Plaintiff’s
counsel on December 21, 2014 seeking consent to extend
Defendant’s time to answer, but Plaintiff’s counsel declined to
consent at that time. (Decl. of Linda A. Galella, Esq. ¶ 3.)
5.

The Court also notes defense counsel’s assertion that

counsel did not have sufficient information to file an answer
until he received the disciplinary file in this matter on April
11, 2014.

(Decl. of Allan E. Richardson, Esq. ¶ 3.)

Counsel

further represents that he had previously attempted to obtain
Plaintiff’s consent to extend time to answer by letter dated May
27, 2014, but Plaintiff’s counsel refused to sign the consent
order.

(Id. ¶ 5.)

Defendant also asserts that it did not at

that time request from the Court an extension of time to answer
because it was unclear that the Court would have jurisdiction to
address the request while the motion for remand was pending.
(Id. ¶ 6.)
5.

Plaintiff filed on December 24, 2014 a request for

entry of default. 1

In the motion, Plaintiff contends that

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Plaintiff initially filed this request on December 23, 2014,
before Defendant filed its motion for an extension of time to
answer, but the request was incorrectly submitted as an
“affidavit” rather than a “request for default.” At the
direction of the Clerk’s office, Plaintiff re-filed his request
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“[w]illful disregard of the procedures of this federal Court
justifies entry of a default judgment against defendant.”

(Req.

for Entry of Default by the Clerk’s Office Pursuant to Fed. R.
Civ. P. 55(a) ¶ 17.)

(Id.)

Further, Plaintiff argues that

Defendant has had a reasonable chance to be heard, and its
failure to file an answer “despite ample time and opportunity to
do so” warrants entry of default judgment.
6.

(Id.)

Although the Clerk of the Court did not enter default,

on December 31, 2014 Plaintiff filed the motion for default
judgment presently before the Court.
7.

Pursuant to Rule 55, obtaining a default judgment is a

two-step process.

First, when a defendant has failed to plead

or otherwise respond, a plaintiff may request the entry of
default by the Clerk of the Court.

See Fed. R. Civ. P. 55(a).

Second, after the Clerk has entered the party’s default, a
plaintiff may then obtain a judgment by default by either: (1)
asking the Clerk to enter judgment, if the judgment is a sum
certain, or (2) by applying to the Court.

See Fed. R. Civ. P.

55(b).
8.

“It is the accepted practice in this Circuit and in

the Federal Court System generally that a party must request and
receive an entry of default from the Clerk prior to moving for

on December 24, 2014. In the meantime, Defendant filed its
motion for an extension of time to answer.
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default judgment before the Court.”

Graise v. Marie, No. 12–

05232, 2013 WL 1155281, at *2 (D.N.J. Mar. 20, 2013).
9.

Here, although Plaintiff requested the Clerk’s entry

of default, Plaintiff did not obtain a Clerk’s entry of default
prior to filing the present motion for default judgment, and
therefore his motion is not properly filed.
10.

Moreover, Defendant has filed a motion to extend time

to answer out of time pursuant to Federal Rule of Civil
Procedure 6(b). 2

Defendant’s effort to obtain an extension of

time to answer, as well as Defendant’s responses to the motion
for remand and the Court’s Order to Show Cause, demonstrate a
willingness to participate in this action.

The Third Circuit

“does not favor entry of defaults or default judgments” and has
expressed a preference to decide cases on the merits.

See

United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 19495 (3d Cir. 1984); Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d
Cir. 1984) (“[W]e have repeatedly stated our preference that
cases be disposed of on the merits whenever practicable.”).

In

light of Defendant’s efforts to appear in this action and defend
this case on the merits, Plaintiff’s request for entry of

2

As noted above, Defendant had requested Plaintiff’s consent to
file an out-of-time answer on December 21, 2014. Plaintiff
refused to provide consent and instead attempted to obtain
default, notwithstanding Defendant’s apparent willingness to
appear and defend in this matter.
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default and Plaintiff’s motion for default judgment are denied.
11.

With respect to Defendant’s motion for an extension of

time to answer, the Court, pursuant to Federal Rule of Civil
Procedure 6(b)(1)(B), may for good cause extend a party’s time
to file an answer “if the party failed to act because of
excusable neglect.”
12.

In considering whether there was “excusable neglect,”

the court considers “‘all relevant circumstances surrounding the
party's omission[,]’” which include “‘the danger of prejudice .
. ., the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.’”

Drippe v. Tobelinski,

604 F.3d 778, 785 (3d Cir. 2010) (quoting Pioneer Inv. Serv. Co.
v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).
14.

Based on the circumstances in this case, the Court

finds that there was “excusable neglect.”

First, the Court

notes that Defendant has participated in the defense of this
matter by responding to the motion for remand and the Order to
Show Cause; that Defendant did not file a motion to extend time
to answer while the motion to remand was pending because it was
not clear that the Court had jurisdiction to address the

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request; 3 that the delay in filing an answer has caused almost no
impact on the judicial proceedings because there were no
proceedings while the motion to remand was pending; and that
Defendant filed the present motion less than one week after the
Court denied Plaintiff’s motion for remand. 4

The Court also

notes that Defendant sought on two occasions to obtain
Plaintiff’s consent to extend time to answer, but Plaintiff
refused to provide consent.

Furthermore, Plaintiff asserts no

prejudice arising out of the delay in filing an answer, and
there is no indication that relevant materials or witnesses were
lost or that any party will have gained an advantage through the
belated filing of an answer.

3

Plaintiff contends that Defendant is disingenuous in arguing
that the Court might not have had jurisdiction to address a
request for extension of time, when Defendant has always
maintained that the Court has jurisdiction over this matter.
Although Defendant may have believed that this Court has subject
matter jurisdiction, the Court’s jurisdiction nonetheless
remained in question while the motion for remand was pending.
4

Plaintiff repeatedly argues that Defendant waited nine months
to seek an extension of time to answer. According to Plaintiff,
Defendant was to file an answer by March 27, 2014, and the
motion to remand was filed on April 17, 2014. Although
Defendant could have filed a motion for an extension of time
despite the pendency of the remand motion, the Court accepts
Defendant’s explanation that it did not file such motion based
on its concern that the Court lacked jurisdiction to decide the
motion in any event. The Court also notes that Defendant almost
immediately sought Plaintiff’s consent to extend time to answer
once the remand motion was decided and sought permission from
the Court to file an answer out-of-time when Plaintiff refused
to provide such consent.
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15.

Based on the lack of prejudice to Plaintiff, the lack

of impact on these proceedings, and Defendant’s good faith
attempt to file an answer once subject matter jurisdiction was
established, the Court finds that Defendant has shown “excusable
neglect” and will grant Defendant’s motion for an extension of
time pursuant to Fed. R. Civ. P. 6(b)(1)(B).

The Third Circuit,

as set forth above, has expressed a clear preference that cases
be decided on their merits, and Defendant is attempting to
participate in the litigation of this matter so that it may be
decided on the merits.
THEREFORE, the Court having decided this matter pursuant to
Fed. R. Civ. P. 78,
IT IS on this

15th

day of January, 2015,

ORDERED that Defendant’s motion [Doc. No. 13] for an
extension of time to file an answer shall be, and the same
hereby is, GRANTED; and it is further
ORDERED that Defendant shall file an answer to the
complaint within fourteen (14) days of the date of this
Memorandum Opinion and Order; and it is further
ORDERED that Plaintiff’s request for entry of default [Doc.
No. 15] and cross-motion for default judgment [Doc. No. 17]
shall be, and the same hereby are, DENIED.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J
At Camden, New Jersey
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