EDWARDS v. GAHM et al
Filing
31
MEMORANDUM OPINION & ORDER that the MOTION for Default Judgment by RENE' D. EDWARDS 23 is DENIED WITH PREJUDICE as to Defendants James R. Gahm and Dana Petrone, and DENIED WITHOUT PREJUDICE as to the remaining Defendants. Signed by Judge Noel L. Hillman on 3/20/2018. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MR. RENE’ D. EDWARDS,
1:16-cv-5702-NLH-AMD
Plaintiff,
MEMORANDUM OPINION & ORDER
v.
JAMES R. GAHM, et al.,
Defendants.
APPEARANCES:
RENE' D. EDWARDS
SUMMIT PLACE APARTMENTS
411 EAST GIBBSBORO ROAD
APT. 110
LINDENWOLD, NJ 08021
Appearing pro se
MELIHA ARNAUTOVIC
OFFICE OF THE ATTORNEY GENERAL OF NJ
25 MARKET ST, 7TH FL, WEST WING
PO BOX 116
TRENTON, NJ 08625
On behalf of Defendant James R. Gahm and Dana Petrone
HILLMAN, District Judge
WHEREAS, on September 21, 2016, Plaintiff’s complaint was
deemed filed, 1 and in his complaint Plaintiff alleges that the
1
When Plaintiff filed his complaint, he submitted an application
to proceed without prepayment of fees (“in forma pauperis” or
“IFP application”) under 28 U.S.C. § 1915, and his complaint was
therefore subject to sua sponte screening by the Court, see 28
U.S.C. § 1915(e)(2)(B). The Court granted Plaintiff’s IFP
application (Docket No. 3), and ordered the Clerk to mail to
Plaintiff a transmittal letter explaining the procedure for
completing United States Marshal (“Marshal”) 285 Forms (“USM-285
Forms”). Once the Marshal receives the USM-285 Forms from
electronic GPS device he wears under Megan’s Law, which law
Plaintiff argues is not applicable to him, failed without his
knowledge, and as a result he was falsely arrested, the arrest
was effected through the use of excessive force, and he was
otherwise subjected to various forms of discrimination; 2 and
WHEREAS, Plaintiff has filed a motion for default judgment
against all Defendants (Docket No. 23), arguing that they were
served by the U.S. Marshal on January 2, 2018 and January 8,
2018, and because more than 21 days elapsed without Defendants
filing an answer or otherwise responding to Plaintiff’s
complaint, they are therefore in default and he is entitled to
judgment in his favor on his claims; and
WHEREAS, under Federal Civil Procedure Rule 55, obtaining a
default judgment is a two-step process:
First, when a defendant
has failed to plead or otherwise respond, a plaintiff must
request the entry of default by the Clerk of the Court, Fed. R.
Civ. P. 55(a), and after the Clerk has entered the party’s
Plaintiff and the Marshal so alerts the Clerk, the Clerk issues
summons in connection with each USM-285 Form submitted by
Plaintiff. The Marshal then serves summons, the Complaint and
the Order to the address specified on each USM-285 Form, with
all costs of service advanced by the United States (Docket No.
12 at 7).
2
Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983,
as well as under New Jersey state law. This Court has subject
matter jurisdiction over Plaintiff’s federal claims under 28
U.S.C. § 1331, and supplemental jurisdiction over Plaintiff’s
state law claims under 28 U.S.C. § 1367.
2
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) applying to the Court, Fed. R. Civ. P.
55(b); and
WHEREAS, on February 2, 2018, Plaintiff filed a request for
the Clerk to enter default (Docket No. 22), along with his
motion for default judgment; but
WHEREAS, the Clerk informed Plaintiff that his request for
default could not be granted because on January 31, 2018, this
Court granted the request of Defendants James R. Gahm and Dana
Petrone for a 30-day extension of time to respond to Plaintiff’s
complaint 3 (Docket No. 21); and
WHEREAS, Defendants Gahm and Petrone timely responded to
Plaintiff’s complaint per the Court’s extension by filing a
motion to dismiss Plaintiff’s complaint 4 (Docket No. 25); and
3
In a January 30, 2018 letter, counsel for Defendants Dana
Petrone and James R. Gahm reported that the 21-day time period
to respond to Plaintiff’s complaint – January 29, 2018 - expired
the day before the matter was assigned to her due to the length
of the screening process at the Attorney General’s Office and
the Office of the Camden County Prosecutor. (Docket No. 20.)
Because the Third Circuit has adopted a policy disfavoring
default judgments and encouraging decisions on the merits, Harad
v. Aetna Cas. and Sur. Co., 839 F.2d 979, 982 (3d Cir. 1988),
the Court granted Defendants’ request for an extension of time
to respond to Plaintiff’s complaint.
4
It has come to the Court’s attention that Plaintiff has not
received a copy of Defendants’ motion to dismiss. Defendants’
certificate of service indicates that they only filed their
3
WHEREAS, because these two Defendants have appeared in the
matter and have responded to Plaintiff’s complaint, default or
default judgment cannot be entered as to them; and
WHEREAS, it appears that summonses were returned as
unexecuted as to Defendants James Samalonis, Ronald Berreman,
Andrew Larue, and Steven Jordan (Docket No. 27, 28, 29, 30), and
because these defendants have not been properly served, default
or default judgment cannot be entered as to these defendants at
this time, see F.T.C. v. Preferred Platinum Services Network,
LLC, 2010 WL 5419024, at *2 (D.N.J. 2010) (“Valid service of
process and the Clerk of Court's entry of default are
prerequisites to entry of judgment by default.”); Louisiana
Counseling and Family Services, Inc. v. Makrygialos, LLC, 543 F.
Supp. 2d 359, 364 (D.N.J. 2008) (citing Anchorage Assoc. v.
Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n.9 (3d Cir.
1990)) (“Federal Rule of Civil Procedure 55(b)(2) authorizes
courts to enter a default judgment against a properly served
motion electronically with the Court. (Docket No. 25 at 3.)
Pursuant to Local Civil Rule 5.2 at 14(b)(2), however, a non-ECF
filer, such as Plaintiff here, is entitled to receive a paper
copy of any electronically filed document from the party making
the filing.
Accordingly, Defendants shall serve a paper copy
of their motion on Plaintiff and file with the Court an updated
certificate of service. Plaintiff shall be provided with 15
days from the date he receives the copy of the motion to file
his response, unless otherwise requested by Plaintiff and
directed by the Court.
4
defendant who fails to file a timely responsive pleading.”); but
WHEREAS, summons was returned as executed as to Defendant
“OFFICER PTLM-BURROWS” on January 8, 2018 (Docket No. 16 at 1),
and Defendant Officer Ptlm-Burrows has not responded to
Plaintiff’s complaint or otherwise appeared in the matter, but
because default has not been entered against this Defendant, the
Court cannot consider Plaintiff’s motion for default judgment;
Therefore,
IT IS on this
20th
day of
March , 2018
ORDERED that the MOTION for Default Judgment by RENE' D.
EDWARDS [23] be, and the same hereby is, DENIED WITH PREJUDICE
as to Defendants James R. Gahm and Dana Petrone, and DENIED
WITHOUT PREJUDICE as to the remaining Defendants 5; and it is
5
The Court does not find the Clerk’s denial of Plaintiff’s
request for default to be in error as to Officer Ptlm-Burrows
because Plaintiff’s request was not specific to any defendant
and he sought the entry of default as to all named defendants
collectively. Plaintiff’s motion for default judgment is
without prejudice to his right to prosecute his claims against
the remaining defendants as he chooses to do so. The Court
notes, however, that if Plaintiff obtains a Clerk’s entry of
default against any of the defendants, and then refiles a motion
for default judgment against that defendant or defendants, he
must do more than demonstrate that defendants have failed to
appear in the action. See Franklin v. National Maritime Union
of America, (MEBA/NMU), Civ. No. 91-480, 1991 WL 131182, *1
(D.N.J. July 16, 1991) (quoting 10 Wright, Miller & Kane,
Federal Practice and Procedure § 2685 (1983)) (explaining that
when considering an application for entry of a default judgment
under Rule 55(b)(2), the Court is “required to exercise ‘sound
judicial discretion’ in deciding whether the judgment should be
entered [and] ‘[t]his element of discretion makes it clear that
the party making the request is not entitled to a default
5
further
ORDERED that Defendants James R. Gahm and Dana Petrone shall
serve a paper copy of their motion to dismiss on Plaintiff
within 7 days in accordance with Fed. R. Civ. P. 5(b)(1), and
file with the Court an updated certificate of service; and it is
further
ORDERED that Plaintiff shall have 15 days from the date he
receives the copy of the motion to file his response, unless
otherwise requested by Plaintiff and directed by the Court.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
judgment as of right, even when defendant is technically in
default and that fact has been noted under Rule 55(a)’”);
Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990)
(explaining that even though by virtue of defendant's default,
every "well-plead allegation" of the complaint, except those
relating to damages, are deemed admitted, a plaintiff must
articulate the substantive legal basis for a finding in its
favor).
6
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