GARRISON et al v. FIDELIS RECOVERY MANAGEMENT, LLC.

Filing 7

ORDER dismissing without prejudice 6 Motion for Default Judgment; Clerk's Entry of Default is VACATED. Signed by Judge Renee Marie Bumb on 9/26/2017. (tf, )

[Docket No. 6]
IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW
JERSEY CAMDEN VICINAGE

WALTER GARRISON II, et al.,

Plaintiffs,

Civil No. 16-9222 (RMB/AMD)

v.
ORDER
FIDELIS RECOVERY MANAGEMENT,
LLC,
Defendant.

This matter comes before the Court upon Plaintiffs’ Motion
for Default Judgment [Dkt. No. 6].
According to the Affidavit of Service, “James Martinez,
Director of Operation” accepted service of the Summons and
Complaint in this action on behalf of Defendant Fidelis
Recovery Management, LLC, on December 26, 2016. [Dkt. No. 3]
On January 10, 2017, Mr. Martinez, on behalf of Defendant
Fidelis, completed and signed an Answer to the Complaint using
a Court form entitled “Pro Se 3 (Rev. 12/16) The Defendant’s
Answer to the Complaint,” and sent it via overnight delivery to
the Clerk of Court for docketing. [Dkt. No. 4]
On January 18, 2017, the Clerk of Court issued the
following quality control docket notation: “Please be advised
that although an individual is entitled to proceed pro se, a
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corporation must be represented by counsel.”

Nothing on the

docket indicates whether Mr. Martinez received this message.
On February 8, 2017, Plaintiffs filed a Request for
Default, see Fed. R. Civ. P. 55(a), which was served upon
Defendant by Certified and First Class Mail. [Dkt. 5-1]
The Clerk entered default on February 10, 2017.
Plaintiffs filed the instant Motion for Default Judgment
on March 28, 2017, which was also served on the Defendant by
Certified and First Class Mail.
To date, no attorney has entered an appearance on behalf
of Defendant, nor has Mr. Martinez filed any other response to
the filings in this case other than his original Answer.
The Clerk’s Entry of Default will be set aside, and the
Motion for Default Judgment will be dismissed without
prejudice.
First, the Entry of Default appears to have been entered
in error, as an Answer was timely filed.

While the Clerk

entered a quality control message indicating that a corporation
must be represented by its own attorney, the Answer was not
stricken.

Nor did the quality control message explain the

consequences of failing to retain a lawyer to represent the
Defendant corporation.

Thus, the Court holds that “good cause”

exists to set aside the default. Fed. R. Civ. P. 55(c); see
generally, Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir.
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1982)(“this court has often emphasized that it does not favor
defaults, and that in a close case doubts should be resolved in
favor of setting aside the default and obtaining a decision on
the merits.”).
Second, as to Plaintiffs’ Motion for Default Judgment, the
moving brief does not cite or apply the Third Circuit’s threepart test for default judgment found in Chamberlain v.
Giampapa, 210 F.3d 154, 164 (3d Cir. 2000)(“Three factors
control whether a default judgment should be granted: (1)
prejudice to the plaintiff if default is denied, (2) whether
the defendant appears to have a litigable defense, and (3)
whether defendant’s delay is due to culpable conduct.”). 1
Moreover, default judgment may not be entered until a
valid default has been entered by the Clerk. Fed. R. Civ. P.
55(a), (b).
THEREFORE, IT IS on this 26th day of September 2017,
hereby:
ORDERED that the Clerk’s Entry of Default is VACATED; and
it is further
ORDERED that Plaintiffs’ Motion for Default Judgment [Dkt.
No. 6] is DISMISSED WITHOUT PREJUDICE; and it is further

See also Hill v. Williamsport Police Dep’t, 69 F. App’x 49,
50 (3d Cir. 2003)(“because Hill has not shown that the District
Court abused its discretion in following Chamberlain’s threepart test, we affirm.”).
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ORDERED that Plaintiffs are directed to: (1) personally
serve James Martinez with a copy of this Order within 20 days
of the date of this Order, and (2) timely file on the docket an
Affidavit of Service evidencing personal service upon Mr.
Martinez; and it is further
ORDERED that Defendant Fidelis shall be granted 30 days
from the date of service (unless extended by the Court upon a
timely request) to retain an attorney who shall enter an
appearance on behalf of Defendant Fidelis in this suit.

In the

event that no attorney enters an appearance within the
proscribed time, Plaintiffs may seek the appropriate default
remedies pursuant to Fed. R. Civ. P. 55, which may result in
the entry of a money judgment against Defendant Fidelis.

s/ Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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