SWIFT v. PANDEY et al

Filing 121

LETTER ORDER denying 114 Motion for Default Judgment. Signed by Judge Jose L. Linares on 11/30/15. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF

MARTIN LUTHER KING
COURTHOUSE
50 WALNUT ST.
COURT ROOM SD
NEWARK, NJ 07101
973-645-6042

JOSE L. LINARES
UNITED STATES DISTRICT JUDGE

November 30, 2015

LETTER ORDER
Via ECF
ROBERT SWIFT
7982 BAYSIDE DRIVE
FORT COLLINS, CO 80528
970-206-4622
Email: [e-mail]
PROSE
VIJAYSEN REDDY YELLAREDDIGARI
CHUGHLLP
295 PIERSON AVENUE
EDISON, NJ 08837
732-205-8600
Email: [e-mail]
Attorney for Ramesh Pandey, Bhuwan Pandey

Re:

Robert Swift v. Ramesh Pandey, Bhuwan Pandey and Xechem (India) Pvt, Ltd.

Civil Action No. 13-650 (JLL) (JAD)
Pending before the Court is Pro Se Plaintiff's Motion for Default Judgment against
Defendant Xechem (India) Pvt, Ltd. pursuant to Federal Rule of Civil Procedure 55(b)(l). (ECF
No. 114.) Plaintiff seeks judgment against Xechem in the amount of $10,460,593, plus interest,
and associated fees and costs. (Id.) The motion is unopposed.
"Before granting a 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 Phi/a. & Vicinity v. Dubin
Paper Co., No. 11-7137, 2012 WL 3018062, at *2 (D.N.J. July 24, 2012) (internal citations
omitted).
The Court denies Plaintiff's motion for failure to establish sufficient proof of service. In
support of the Motion, Plaintiff does not submit a brief and instead "relies upon the record" and
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an accompanying affidavit. (ECF No. 114.) Plaintiffs affidavit states as follows: "Complaint was
served upon defendant Xechem (India) Pvt, Ltd. on July 6, 2015, no response has been served
within the time allowed by law nor has defendant sought additional time within which to respond,
and Default has been entered against defendant on October 7, 2015." (ECF No. 114.)
However, there is no evidence before the Court that shows that Xechem was actually
served. On November 26, 2014, a summons was issued as to Xechem. (ECF No. 73.) On
December 1, 2014, the Clerk of the Court mailed the summons to the Ministry of Law & Justice
in New Delhi, India. (ECF No. 74.) Those are the only two docket entries relating to service of
Xechem; there is nothing to indicate that service was actually executed after the summons was
sent to the Ministry of Law & Justice in New Delhi, India.
Although the pro se plaintiffs are given considerable latitude in their submissions, they still
bear the burden of showing why a motion-including one for default judgment-should be
granted. See Khater v. Puzino Dairy, Inc., No. 14-4618, 2015 WL4773125 (D.N.J. Aug. 12, 2015)
(adopting report and recommendation that pro se plaintiffs motion for default judgment be denied
for failure to establish service of process). In the absence of either affirmative evidence showing
execution of service, or a memorandum of law explaining how the steps taken here are adequate,
the Court cannot conclude that there is sufficient proof of service and will deny Plaintiffs motion
without prejudice.
For the foregoing reasons,

IT IS on this 30th day of November, 2015,
ORDERED that Plaintiffs Motion for Default Judgment against Defendant Xechem
(India) Pvt, Ltd. (ECF No. 114) is DENIED without prejudice.

IT IS SO ORDERED.

SE L. LINARES

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