ASHLEY v. METELOW et al

Filing 44

ORDER that Plaintiff's motion for default judgment 34 is DENIED; Defendants' motion to set aside entry of default as to Defendants Marrocco, Metelow, and Stelz 39 shall be GRANTED and these Defendants shall file their Answer or otherwise plead within twenty-one (21) days of entry of this Order. Signed by Judge Jerome B. Simandle on 1/18/2018. (tf, n.m.)

IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW JERSEY

KEITH ASHLEY,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil No. 15-3153 (JBS-AMD)
v.
DAVID METELOW, et al.,

ORDER

Defendants.

This matter is before the Court on the following motions:
(a)

Motion by Plaintiff Keith Ashley for Default Judgment
[Docket Item 34]; and

(b)

Motion by Defendants David Metelow, Tanya Stelz, and
Anthony Marrocco to set aside default and extend the
time to answer [Docket Item 39]; and

The Court having considered the submissions of the parties,
including the Affidavit in Support of Motion to Set Aside
Default subscribed by Deputy Attorney General Suzanne Davies
[Docket Item 39-1], as to which no opposition has been filed;1
and
The Court finds:
1.

Several defendants (Metelow, Marrocco, and Stelz) were

served with process on May 10, 2017, and they requested
representation from the Attorney General’s Office.

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By letter to Plaintiff Ashley, this Court requested Mr.
Ashley to submit any opposition to Defendants’ motion by
October 2, 2017 [Docket Item 41], and no opposition has been
received.

2.

According to DAG Davies’ Affidavit, another defendant

(Don Siebert) was retired from the Department of Corrections
prior to the May 10, 2017 service of process which the
Department of Corrections accepted on his behalf; Siebert has
not yet requested the representation of the Attorney General on
his behalf; the legality of service upon Siebert as a retired
employee is questionable but cannot be decided on the present
record.
3.

When the Attorney General’s Office was anticipating

Siebert’s request for representation (which never came), the
time for responding to the Complaint expired for Defendants
Metelow, Marrocco, and Stelz on May 31, 2017 with no action
taken, through inadvertence of the Attorney General’s Office.
4.

Upon Plaintiff’s request, the Clerk of Court entered

default on July 17, 2017, pursuant to Rule 55(a), Fed. R. Civ.
P., as to Metelow, Siebert, Marrocco, and Stelz.
5.

On August 2, 2017, Plaintiff filed the present motion

for default judgment under Rule 55(b) [Docket Item 34], and
Defendants Marrocco, Metelow, and Stelz moved, through DAG
Davies, to set aside the default and to extend their time to
answer or otherwise plead.
6.

Efforts on two occasions to serve another Defendant --

Kenneth Nelsen -- were unsuccessful and the Marshal returned the
USM-285 Forms unexecuted on May 3, 2017 [Docket Item 25] and

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December 1, 2017 [Docket Item 42] as to Defendant Nelsen who has
still not been served.
7.

The unopposed motion of Defendants Marrocco, Metelow,

and Stelz to set aside entry of default will be granted.
Through excusable neglect, their attorney within the Attorney
General’s Office failed to timely answer or otherwise respond to
the Complaint on their behalf.

The defendants may have a

plausible defense on the merits and the case -- raising
important issues of personal rights -- should go forward rather
than being resolved by default.

Further, it follows that

Plaintiff’s motion for default judgment under Rule 55(b) will be
denied.
8.

As to the remaining Defendant, Don Siebert, the Court

will require the Deputy Attorney General Davies to ascertain the
status of his service.

If Mr. Siebert will not acknowledge

service and instead insists upon individual service, then DAG
Davies shall provide to the Court, under seal, the last known
home address for Defendant Siebert so that the Court can
authorize the issuance of a second summons for service by the
Marshal.

If so, the U.S. Marshal will be directed to make

personal service of the Summons and Complaint upon defendant
Siebert and to file a confirmation of service promptly
thereafter.

Defendant Siebert shall have twenty-one days after

service of the Complaint to file his Answer or otherwise file a
responsive pleading.

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WHEREFORE, IT IS this

18th

day of January, 2018 hereby

ORDERED that Plaintiff’s motion for default judgment
[Docket Item 34] shall be, and it hereby is, DENIED; and it is
further
ORDERED that Defendants’ motion to set aside entry of
default as to Defendants Marrocco, Metelow, and Stelz [Docket
Item 39] shall be GRANTED and these Defendants shall file their
Answer or otherwise plead within twenty-one (21) days of entry
of this Order; and it is further
ORDERED that DAG Suzanne Davies shall ascertain whether
Defendant Siebert acknowledges service of process and requests
representation by the Attorney General, and if so, his answer or
other responsive pleading shall be due within twenty-one (21)
days hereof; and it is further
ORDERED that if Defendant Siebert has not acknowledged
service of process within twenty-one (21) days hereof, then DAG
Davies shall supply the Court, under seal, with Mr. Siebert’s
address for personal service of process and the Marshal will be
directed to serve the Summons and Complaint upon him, and Mr.
Siebert’s answer or other response shall be due within twentyone (21) days of service of process.

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

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