MURRAY v. OSTROWSKI et al

Filing 95

OPINION & ORDER denying 85 and 89 Plaintiff's Motion for Entry of Default; Plaintiff shall properly effectuate service of his Third Amended Complaint upon Defendant Ryer in accordance with applicable Rules of Civil Procedure, within 21 days of the date of entry of this Order; Plaintiff shall file his Responses to Defendant's respective Motions to Dismiss, on or before June 12, 2023. Signed by Judge Noel L. Hillman on 5/17/2023. (alb, n.m.)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID L. MURRAY
Plaintiff,
v.
MICHAEL R. OSTROWSKI,
Family Court Judge;
DAVID RYAN NUSSEY,
Attorney; ASHLEY BATTAGLIA,
Salem County DCP&P Case
Worker; ALLISON E. ACCURSO,
Appellate Judge; CATHERINE I.
ENRIGHT, Appellate Judge;
KAYLA OSCAR, Salem County
DCP&P Case Worker; CRAIG
JESPERSEN, Salem County DCP&P
Case Worker; LAUREN K. BUNN,
Salem County DCP&P
Supervisor; MICHELLE DOAMAN,
Salem County DCP&P
Supervisor; KEITH DELOATCH,
Salem County DCP&P
Supervisor; and, EDWARD RYER

1:22-cv-00812-NLH-AMD
OPINION & ORDER

Defendants.

APPEARANCES:
David L. Murray
1325 Weymouth Rd.
Vineland, NJ 08360
Plaintiff appearing Pro Se
Angela Cifelli, Esq.
Office of the Attorney General of New Jersey
25 Market Street
P.O. Box 116
Trenton, NJ 08625
Representing Defendants Ostrowski and Enright

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David A. Avedissian, Esq.
135 Kings Highway East
Haddonfield, NJ 08033
Representing Defendant Nussey
Thai Nguyen, Esq.
Office Of The Attorney General
Division Of Law
25 Market Street
Trenton, NJ 21144
Representing Defendants Battaglia, Oscar,
Jespersen, Bunn, Doaman and DeLoatch
HILLMAN, District Judge
WHEREAS, on February 16, 2022, Plaintiff filed a Complaint
against Defendants under Section 1983 for damages he alleges to
have sustained from underlying custody litigation (ECF No. 1);
and
WHEREAS, since that time, Plaintiff has amended his
Complaint twice (ECF Nos. 44, 72); and
WHEREAS, Plaintiff has repeatedly failed to properly serve
Defendants with his Complaints (ECF Nos. 40, 47, 70, 80); and
WHEREAS, Plaintiff has repeatedly sought default judgments
against Defendants who were improperly served or Defendants who
properly responded to Plaintiff’s Complaint by means of a Motion
to Dismiss (ECF Nos. 14, 16, 65); and
WHEREAS, on numerous occasions, Plaintiff has been directed
by the court to serve Defendants in accordance with applicable

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Rules of Civil Procedure (ECF No. 3 at 3) (“If you are not
proceeding in forma pauperis and have paid the filing fee, the
Clerk’s Office will issue summonses to you, and you will be
responsible for serving the defendants in the case in the manner
and time described in Federal Rule of Civil Procedure 4. Please
note that Federal Rule of Civil Procedure 4(i) governs the
service of the United States, its agencies, corporations,
officers, and employees.”); see also ECF Nos. 40, 47, 70; and
WHEREAS, on March 6, 2023, Plaintiff was again reminded by
this Court that as a pro se litigant, he cannot flout procedural
rules, and is not absolved of his obligation to abide by the
Federal Rules of Civil Procedure and this Court’s Local Civil
Rules (ECF No. 75 at 2); and
WHEREAS, on March 16, 2023, Defendants Accurso, Enright and
Ostrowski timely filed a Motion to Dismiss Plaintiff’s Third
Amended Complaint (ECF No. 76); and
WHEREAS, on March 21, 2023, Defendants Battaglia, Bunn,
DeLoatch, Doaman, Jespersen and Oscar timely filed a Motion to
Dismiss Plaintiff’s Third Amended Complaint (ECF No. 78); and
WHEREAS, on March 22, 2023, Plaintiff filed a
“Certification for Proof of Service” (ECF No. 80), in which he
provided copies of U.S. Postal Service Certified Mail Receipts
showing his Third Amended Complaint had been mailed but failed
to provide copies of the signed green cards to demonstrate said
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Complaint had been received (ECF No. 80); and
WHEREAS, on April 12, 2023, Plaintiff filed yet another
Motion for Entry of Default Judgment (ECF No. 85); and
WHEREAS, “Federal Rule of Civil Procedure 55(b)(2)
authorizes courts to enter a default judgment against a properly
served defendant who fails to file a timely responsive
pleading.” Chanel, Inc. v. Gordashevsky, 558 F. Supp. 2d 532,
535 (D.N.J. 2008) (citing Anchorage Assocs. v. V.I. Bd. of Tax
Rev., 922 F.2d 168, 177 n.9 (3d Cir. 1990)); and
WHEREAS, “[t]he entry of a default judgment is largely a
matter of judicial discretion, although the Third Circuit has
emphasized that such ‘discretion is not without limits, however,
and we repeatedly state our preference that cases be disposed of
on the merits whenever practicable.’”

Id. (quoting Hritz v.

Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984)); and
WHEREAS, when assessing a motion for default judgment, “the
Court must determine (1) whether there is sufficient proof of
service; (2) whether a sufficient cause of action was stated;
and (3) whether default judgment is proper.”

Teamsters Health &

Welfare Fund of Phila. & Vicinity v. Dubin Paper Co., Civil No.
11-7137, 2012 U.S. Dist. LEXIS 102652, at *5 (D.N.J. July 24,
2012); and
WHEREAS, Defendants Accurso, Enright, Ostrowski, Battaglia,
Bunn, DeLoatch, Doaman, Jespersen and Oscar have waived service
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by reason of their filing of motions to dismiss (ECF Nos. 76,
78); and
WHEREAS, Plaintiff’s most recent “Certification for Proof
of Service” (ECF No. 80) and Certification in Support of Motion
for Default (ECF No. 89) do not demonstrate sufficient proof of
service in compliance with pertinent Rules; and
WHEREAS, to date, Defendants Ryer and Nussey still have not
been properly served (ECF Nos. 87, 91), thereby eliminating the
need for any further Rule 55(b) analysis by this Court.
Teamsters Health & Welfare Fund of Phila. & Vicinity, 2012 U.S.
Dist. LEXIS 102652, at *5; and
WHEREAS, on May 12, 2023, Defendant Nussey nevertheless
filed a Motion to Dismiss Plaintiff’s Third Amended Complaint
(ECF No. 92), thereby waiving service; and
THEREFORE, it is on this 17th day of May, 2023,
ORDERED that Plaintiff’s Motions for Entry of Default (ECF
Nos. 85, 89) be, and the same hereby are, DENIED and it is
further
ORDERED that within twenty-one (21) days of entry of this
Order, Plaintiff properly effectuate service of his Third
Amended Complaint upon Defendant Ryer in accordance with
applicable Rules of Civil Procedure or risk dismissal of his
claims against said Defendant; and it is further

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ORDERED that on or before June 12, 2023, Plaintiff shall
file his Responses to Defendants Accurso, Enright, Ostrowski,
Battaglia, Bunn, DeLoatch, Doaman, Jespersen, Oscar and Nussey’s
respective motions to dismiss (ECF Nos. 76, 78, 92); and it is
further
ORDERED that the Clerk of Court serve a copy of this Order
upon Plaintiff via Regular Mail.

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

At Camden, New Jersey

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