Filing 121

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

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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: rswift1040@earthlink.net PROSE VIJAYSEN REDDY YELLAREDDIGARI CHUGHLLP 295 PIERSON AVENUE EDISON, NJ 08837 732-205-8600 Email: vijay.yellareddigari@chugh.com 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 1 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 UNfl'!'.~T~yl?ngror~:cuiuDGE 2

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