THIELE v. CABLEVISION
Filing
25
OPINION AND ORDER granting 21 Motion to Vacate, and indicating that Defendant has represented that it is willing to waive service and any objection to this Courts in personam jurisdiction. (ECF No. 21-1 at 1). The Court therefore deems service of the Complaint to have been made. Defendant shall file its responsive pleading no later than March 29, 2016. Signed by Magistrate Judge Leda D. Wettre on 3/8/16. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of
Martin Luther King Federal Building
& U.S. Courthouse
Leda Dunn Wettre
owt1
United States Magistrate Judge
(973) 645-3574
March 8, 2016
To:
Donald F. Thiele, Plaintiff Pro Se
All counsel of record
LETTER OPINION AND ORDER
RE:
Thiete v. Cablevision
Civil Action No. 2: 13-cv-02571 (MCA) (LDW)
Dear Mr. Thiele and Counsel:
Before the Court is defendant’s motion to vacate the Clerk’s entry of default. (ECF No.
21). Plaintiff opposes the motion. (ECF No. 22, 24). Pursuant to Federal Rule of Civil
Procedure 7$, and because the parties did not request it, the Court did not hear oral argument.
Procedural Background
Plaintiff filed this age discrimination action in April 2013. He did not file a proof of
service of the Complaint until May 2014, in response to the Court’s issuance of a notice of call for
dismissal under Federal Rule of Civil Procedure 4(m). (ECF Nos. 5, $). The proof of service
plaintiff subsequently filed indicated that service had been made on April 15, 2014 upon a “Tricia
Cipolla Secretary” at a Cablevision store in Oakland, New Jersey. (ECF No. $).
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After six weeks passed without defendant’s having responded to the Complaint, the Court
ordered plaintiff to move the case by seeking default against the defendant. (ECF No. 9).
Plaintiff subsequently sought entry of default, which the Clerk entered on August 25, 2014.
Plaintiff later moved for default judgment, again in response to the Court’s prompting.
The Court denied the initial motion without prejudice due to plaintiffs failure to submit sufficient
proof of damages. (ECF No. 14). Plaintiff thereafter supplemented and renewed his motion for
default judgment. (ECF No. 15).
While that motion was pending, defendant Cablevision appeared for the first time and
sought leave to vacate the Clerk’s entry of default and oppose the default judgment motion. (ECF
Nos. 16, 17). The Court granted leave, and this motion followed. (ECF Nos. 18, 21).
Legal Analysis
In considering the motion to vacate entry of default against Cablevision, the Court is
mindful of the policy favoring adjudication of an action on its merits rather than by default.
United States v. $55,518.05 in US. Currency, 728 F.2d 192, 195 (3d Cir. 1984); see also Gross v.
Stereo Component Sys., Inc., 700 F.2d 120, 122 (3d Cir. 1983); Farnese v. Bagnasco, 687 F.2d
761, 764 (3d Cir. 1982); Tozer v. Charles A. Krause Mill. Co., 189 f.2d 242, 245 (3d Cir. 1951).
Under Federal Rule of Civil Procedure 55(c), the Clerk’s entry of default maybe set aside
for good cause. The determination of good cause normally requires consideration of the
following 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.
See $55,518.05 in US. Currency, 728 F.2d at 195.
The Court, however, need not reach those factors where, as here, defendant demonstrates
that service of process was improper. The absence of proper service constitutes good cause pç
se for vacating entry of default. See Smalls v. Buckalew Frizzell & Crevina LLP, No. CIV.A. 134637 SRC, 2014 WL 2889645, at *1 (D.N.J. June 25, 2014) (“Clearly, failure to effect proper
service constitutes good cause.”); see also Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19
(3d Cir. 1985) (“A default judgment entered when there has been no proper service of the
complaint is, afortiori, void, and should be set aside.”); Mettle v. first Union Nat. Bank, 279 F.
Supp. 2d 598, 603 n.3 (D.N.J. 2003) (finding entry of default void based on improper service of
summons and complaint).
Federal Rule of Civil Procedure 4(h)(1) requires that a corporation be served “by delivering
a copy of the summons and of the complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive service of process and—if the agent is
one authorized by statute and the statute so requires—by also mailing a copy of each to the
defendant” or, in the alternative, in the manner prescribed by Federal Rule of Civil Procedure
4(e)(1). Rule 4(e)(1) allows service to be effected by following the state law for serving a
summons in the state where the district court is located or where service is made. New Jersey
law allows service of process 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
4:4—
corporation, or on a person at the registered office of the corporation in charge thereof.”
4(a)(6).
.
In support of its motion, Cablevision submits a sworn statement that plaintiff did not effect
service upon anyone authorized by law to accept service on behalf of Cablevision. (See Decl. of
Rochelle Noel, ECF No. 21-1 ¶22). Although plaintiff’s proof of service indicates that the
Secretary,”
Summons and Complaint were personally delivered upon “Tricia Cipolla
Cablevision certifies that Ms. Cipolla is employed in a non-managerial capacity at a Cablevision
Optimum Store. (Id. ¶19). Cablevision further certifies that Ms. Cipolla, who reports to the
store’s manager, is not authorized to accept service on behalf of defendant. Nor did she forward
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the Complaint to anyone authorized to accept service on behalf of Cablevision.
(Id. ¶20-21).
Given these sworn facts proffered by Cablevision, which are not controverted by plaintiff,
the Court finds that proper service was not effected upon Cablevision. The absence of service
constitutes good cause to vacate the Clerk’s entry of default against Cablevision.
Conclusion
For the foregoing reasons, defendant’s motion to vacate the Clerk’s entry of default (ECF
No. 21) is GRANTED. Plaintiffs motion for default judgment (ECF No. 15) is therefore moot.
The Clerk is therefore directed to terminate ECF Nos. 15 and 21.
Defendant has represented that it is willing to waive service and any objection to this
Court’s in personam jurisdiction. (ECF No. 21-1 at 1). The Court therefore deems service of
the Complaint to have been made. Defendant shall file its responsive pleading no later than
March 29, 2016.
SO ORDERED this
$th
day of March, 2016.
J
Orig:
cc:
Leda Dunn Wettre
United States Magistrate Judge
Clerk
The Honorable Madeline C. Arleo, U.S.D.J.
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