MALLORY v. VERIZON et al

Filing 21

MEMORANDUM OPINION and ORDER denying 12 Motion for Default Judgment; granting 14 Motion to Set Aside Default. The Clerk's entry of default is Vacated. Signed by Judge Kevin McNulty on 12/23/13. (jd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CORNELL G. MALLORY

Civ. No. 2: 12-cv-02366
(KM)(MAH)

Plaintiff,
MEMORANDUM OPINION
AND ORDER

v.
VERIZON et al.,
Defendants.

MCNULTY, District Judge.
This matter comes before the Court on the motion of the Plaintiff, Cornell G.
Mallory, for a default judgment against the Defendants, Verizon, Keith Downey,
Chris Lundgren, Richard Silver, and Jerry Viasak (Docket No. 12), and the
Defendants’ opposition to the motion, with cross-motion to set aside default
(Docket No. 14). For the reasons set forth below, default judgment will not be
granted. Accordingly, the Plaintiff’s motion will be DENIED and the Defendant’s
cross-motion will be GRANTED.
I.

BACKGROUND

The plaintiff, Mallory, brings this suit for employment discrimination
pursuant to Title VII of the Civil Rights Act. Compl. (Docket No. 1). Mallory is a
resident of Union, New Jersey. Id. at 1. Mallory alleges discrimination on the
basis of race by a Verizon supervisor, Chris Lundgren, in Irvington, New
Jersey. Compl. at 2-3. Lundgren allegedly suspended and then dismissed the
Plaintiff. Id. at 3.
The United States Marshals served process on all Defendants. (Docket
No. 9) The summons, which states that the date of service was November 15,
2012, was received by the Court on December 3, 2012. Id. The proof of service
shows that a copy of the summons and complaint was delivered to Cyril
Bernard. Id. The Defendants assert that Bernard is a “plant cleaner” at
Verizon’s Newark facility who acts as a mail clerk. Id., Def. Br. at 2. No one else
at Verizon was personally served, including the individual Defendants. Id. The

Defendants assert that Verizon became aware of the attempted service on May
22, 2013 when it received a copy of the Court’s letter order directing the
Plaintiff to file for default or have the case dismissed. Def. Br. at 2; (Docket No.
10).
Mallory moved for default judgment in the amount of $50 million and the
Clerk’s Office entered default against the Defendants on May 17, 2013. (Docket
Nos. 11, 12). The Defendants oppose the default and cross-move in opposition.
(Docket No. 14). Mallory has not submitted a separate opposition to the
Defendant’s cross-motion.
II.

DISCUSSION

Before the Court may enter default judgment against the Defendants, the
Plaintiff must have executed proper service of the Complaint on the
Defendants, and the Defendants must have failed to file a response within the
time frame provided in the Federal Rules. See Gold Kist, Inc. v. Laurinburg Oil
Co., 756 F.2d 14, 18-19 (3d Cir. 1985); Petrucelli v. Bohringer and Ratzinger, 46
F.3d 1298, 1304 (3d. Cir. 1995) (citing same). Pursuant to Fed. R. Civ. P. 12(a),
the Defendants have twenty days from the date of service to file an answer. Id.
If those requirements are met, the Court must consider three factors: (1)
whether the plaintiff will be prejudiced; (2) whether the defendant has a
meritorious defense; and (3) whether the default was the result of the
defendant’s culpable conduct. Gold Kist, Inc., 756 F.2d at 19 (citing Hritz v.
Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984); United States v. $55,518.05 in
U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984); Gross v. Stereo Component
Systems, Inc., 700 F.2d 120, 122 (3d Cir. 1983); Feliciano v. Reliant Tooling Co.,
691 F.2d 653, 656 (3d Cir.1982); Farnese v. Bagnasco, 687 F.2d 761, 764 (3d
Cir. 1982)).
Here, the Defendants failed to respond to the Complaint within the time
allotted by the Federal Rules, but they contend that they were not properly
served. The party asserting the validity of service bears the burden of proof.
Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488
(3d Cir. 1993) (citing 4A Wright and Arthur R. Miller, Federal Practice and
Procedure § 1083 (1987)); Polfroni v. Commercial Recovery Sys., No. 11-03362
(WHW), 2012 WL 3018292, * 4 (D.N.J. July 24, 2012) (denying motion for
default judgment because plaintiff did not demonstrate that defendant was
properly served).
Service of Verizon, a corporate entity, may be made by delivering a copy
of the summons and complaint to “an officer, a managing or general agent, or

any other agent authorized by appointment or by law to receive service of
process” or by following state law for serving a summons in an action brought
in courts of general jurisdiction where the district court is located or where
service is made. Fed. R. Civ. P. 4(h)(1). New Jersey law states in relevant part
that service on a corporation may be made:
by serving a copy of the summons and complaint.
on any
officer, director, trustee or managing or general agent, or any
person authorized by appointment or by law to receive service of
process on behalf of the corporation, or on a person at the
registered office of the corporation in charge thereof, or, if service
cannot be made on any of those persons, then on a person at the
principal place of business of the corporation in this State in
charge thereof, or if there is no place of business in this State, then
on any employee of the corporation within this State acting in the
discharge of his or her duties.
.

.

N.J. Rule 4:4-4(a)(6).
Service of the individual defendants may be made under the Federal
Rules by delivering a copy or of the summons and complaint on the individual
personally; by leaving a copy of each at the individual’s dwelling or “usual place
of abode” with “someone of reasonable age or discretion who resides there; or
delivering a copy of each to “an agent authorized by appointment or by law to
receive service of process. Fed. R. Civ. P. 4(e)(2). It may also be made by
following state law for serving a summons in an action brought in courts of
general jurisdiction where the district court is located or where service is made.
Fed. R. Civ. P. 4(e)(1). The New Jersey rule for serving individuals mirrors the
Federal Rule. See N.J. Rule 4:4-4(a)(1).
In this case, the the United States Marshals delivered a copy of the
summons and complaint to “Mr. Cyril Bernard” at Verizon’s Newark facility.
(Docket No. 9); Def. Br. at 6. The Defendants assert that Bernard is a “plant
cleaner” and not an officer, managing agent, general agent, director, or trustee
of Verizon, or “in charge” of the Verizon Newark facility. Def. Br. at 6; Glannon
Cert. (Docket No. 14-6) ¶ 4. They further argue that Bernard was not appointed
as an agent authorized to receive service for any of the Defendants, and that
his status as a mail clerk does not establish that he is authorized to accept
service of process on their behalf. Id. at 6, 8; Glannon Cert. ¶ 5; Downey Cert.
(Docket No. 14-5) ¶ 4; Silver Cert. (Docket No. 14-4) ¶ 4; Lundgren Cert.
(Docket No. 14-2) ¶ 4; Vlasak Cert. (Docket No. 14-3) ¶ 4. They also assert that

the Plaintiff did not attempt to serve the individual defendants personally or by
leaving copies of the summons and complaint at their “dwellings or places of
abode.” Def. Br. at 8; Downey Cert. ¶ 2; Silver Cert. ¶ 2; Lundgren Cert. ¶ 2;
Viasak Cert. ¶ 2.
The Plaintiff has not submitted any separate opposition to the
Defendants’ cross motion and has not offered any proof that Bernard was an
authorized agent or that service was proper on the Defendants. Because the
burden of showing that service is proper is on the party asserting it, this would
seem to establish that the Defendants were not in default. However, I need not
hinge the disposition of this Opinion on whether service was proper, because I
would nevertheless find that default judgment is inappropriate here.
All three Gold Kist factors weigh against awarding default judgment.
First, there has been no showing that the Plaintiff will be prejudiced by the
denial of default judgment. Second, there is some indication that Defendants
have a meritorious defense, both as to the adequacy of service and as to the
adequacy of the allegations of the complaint.’ Third, the default was not the
result of the Defendants’ culpable conduct. Culpable conduct is conduct “taken
willfully or in bad faith.” Chamberlain v. Giampapa, 210 F.3d 154,164 (3d Cir.
2000)(citing Gross v. Stereo Component Sys., Inc., 700 F.2d 120, 124 (3d
Cir. 1983)). The Defendants assert that they were wholly unaware of any
attempted service until May 22, 2013, when it received a letter from the Court
concerning the default, and that their ensuing attempts to locate the summons
and complaint delivered to Bernard were unsuccessful. Def. Br. at 2-3. After
receiving the Court’s letter, the Defendants made a timely response to the entry
of default and motion for default judgment. Id. at 13. Regardless of whether the
service was technically deficient, there is no indication that the Defendants
acted willfully or in bad faith.
III.

CONCLUSION

The entry of default judgment is not appropriate here. Plaintiff has not
carried his burden of establishing that service of the Summons and Complaint
was properly made on the Defendants. Furthermore, there is no good argument
against allowing the case to proceed on the merits.

1

The pro se complaint alleges only that the Plaintiff was suspended and then
dismissed by a supervisor “who is a racist.”

Accordingly,
IT IS this 23d day of December 2013,
ORDERED that the Plaintiffs motion for default judgment in the amount
of $50 million (Docket No. 12) is DENIED, and the Defendants’ cross-motion to
set aside default (Docket No. 14) is GRANTED. The Clerk’s entry of default is
VACATED.

EVIN MCNULTY
United States District Ju