OLIVER et al v. DEPARTMENT OF HUMAN SERVICES, SPECIAL TREATMENT UNIT et al

Filing 54

ORDER denying #47 Motion for Default Judgment as procedurally defective; that Deft. may subm. a response w/in thirty days of the date herein.. Signed by Judge Jose L. Linares on 4/1/13. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LORENZO OLIVER,

Civil Action No.: 09-5336 (JLL)
Plaintiff,

v.

ORDER

DEPARTMENT OF HUMAN SERVICES, et
al.,
Defendants.

LINARES, District Judge.
This matter comes before the Court by way of a motion for default judgment by Plaintiff
Lorenzo Oliver (“Plaintiff” or “Oliver”) as to Defendants Clerke Bruno and Steve Johnso
n
(CMIECF No. 47). Defendant Steve Johnson timely opposed Plaintiff’s motion. The Court
notes at the outset that although Defendant Bruno did not oppose the instant motion, he was
dismissed from this action on March 1, 2013. (CMIECF No. 46; see CMIECF No. 38).
No oral
argument was heard pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth
below, Defendants motion for default judgment is DENIED.
As the Court writes only for the parties and has already detailed the facts and procedural
history of this case, it will only recite same as is relevant to the instant discussion. Plainti
ff
commenced this action on October 19, 2009, and submitted a proposed amended compla
int
thereafter. (CMIECF No. 1, 5). By way of Opinion and Order issued on July 16, 2012,
this
Court dismissed Plaintiff’s Complaint. (CMIECF Nos. 29, 30). Plaintiff filed a Second
Amended Complaint on August 22, 2012. (CMIECF No. 31). The Court dismissed Plaintiff’s

Second Amended Complaint as to Defendant Merril Main and Defendant George Hayman.
(CMIECF Nos. 38, 39). On January 30, 2013, the Court issued a Notice of Call for Dismissal for
failure to effect service of the summons and complaint within 120 days of the filing of the
complaint, and advising Plaintiff that if he did not file proof of service with the Clerk of the
Court, his action would be dismissed. (CMIECF No. 40). The executed summons submitted by
Oliver indicates that Plaintiff served Johnson on January 18, 2012. Notably, given that Plaintiff
filed an Amended Complaint on August 22, 2012, there is no indication that Defendant Johnson
was served with the Second Amended Complaint. In response to a letter from the Court
directing Plaintiff to move this civil action, Oliver filed a motion for default judgment on March
4, 2013. (CMIECF No. 47). Notably, Plaintiff Oliver did not first request that the Clerk’s Office
“enter the party’s default.” Fed. R. Civ. P. 55(a); Doug Brady, Inc. v. N.J. Bldg. Laborers
Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008). In any event, in order to obtain the entry
of default against a defendant, the defendant must have been served with the operative
complaint. In opposition to the instant motion, Defendant Johnson states that “[biecause plaintiff
has not ever served Johnson with the second amended complaint, and Johnson is now
represented by counsel, he would treat an electronic court filing from plaintiff as the date of
service, in order to avoid further unnecess,y delay.” (Def.’s Opp’n. 5). Accordingly,
IT IS on this

/

day of

,20 13,

ORDERED that Plaintiff’s motion for default judgment is DENIED as procedurally
defective; and it is further
ORDERED that Defendant may submit a response within thirty days of the date herein.
SO ORDERED.
Linares
States District Judge
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