MARTUCCI v. GONZALEZ et al
Filing
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OPINION. Signed by Judge William J. Martini on 9/15/14. (gh, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Docket No.: 14-cv-3267-WJMMF
WILLIAM MARTUCCI,
Plaintiff,
v.
OPINION
GERARDO GONZALEZ, YAMEL
GONZALEZ a/k/a YAMEL MARTUCCI
GONZALEZ, AND JOHN AND JANE
DOES,
Defendants.
WILLIAM J. MARTINI, U.S.D.J.:
This matter comes before the court upon Plaintiff’s motion for default
judgment and Defendants’ cross-motion to vacate default judgment. For the reasons
set forth below, both motion and cross-motion are denied.
I.
BACKGROUND
Plaintiff pro se William Martucci filed this Complaint on May 21, 2014. (ECF
No. 1). Defendant Yamel Gonzalez is Plaintiff’s daughter, and Defendant Gerardo
Gonzalez is her husband. The Complaint alleges that the Defendants recorded phone
conversations that they had with Plaintiff. Plaintiff did not have knowledge that
those conversations were being recorded, nor did he consent to their being recorded.
The Defendants then turned the recordings over to authorities. The recorded phone
calls contain material that is potentially incriminating against Plaintiff. Plaintiff is
currently a defendant in two Essex County criminal prosecutions, and the
Gonzalezes are witnesses against Plaintiff in those prosecutions. Plaintiff claims
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that the recordings violated federal wiretapping statutes and his Fourth Amendment
rights.
Plaintiff properly served Defendants with the Summons and Complaint. (ECF
No. 4). Defendants did not file an answer to the Complaint within 21 days of service,
and the Clerk entered a default against them. (ECF No. 3). Plaintiff served
Defendants with his motion for default judgment on July 14, 2014 and filed it with
the court on July 17, 2014. (ECF No. 4). On July 30, 2014, Defendants filed a crossmotion to vacate default. (ECF No. 6).
II.
JURISDICTION
This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331
because the case involves questions of federal law, including the Electronic Privacy
Communications Act, 18 U.S.C. § 2510 et seq. and the Fourth Amendment of the
U.S. Constitution. The court also has subject matter jurisdiction pursuant to 28
U.S.C. § 1332 because the parties are citizens of different states, and there is an
amount in controversy exceeding $75,000. Specifically, Plaintiff is a citizen of New
Jersey, and Defendants are citizens of Florida. Plaintiff seeks $12 million.
III.
MOTION TO VACATE DEFAULT
Federal Rule of Civil Procedure 55 governs motions to vacate default. Under
the Rule, the court may vacate default “[f]or good cause.” The decision to set aside
the entry of default is left to the discretion of the district court. United States v.
$55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984). Default is
disfavored, and doubtful cases must be resolved in favor of the moving party so that
the cases may be decided on their merits. Id. at 194-95.
The court considers four factors in determining whether there is good cause
to vacate entry of default: (1) whether lifting the default would prejudice the
plaintiff; (2) whether the defendant has a prima facie meritorious defense; (3)
whether the defaulting defendant’s conduct is excusable or culpable; and (4) the
effectiveness of alternative sanctions. Emcasco Ins. Co. v. Sambrick, 834 F.2d 71,
73 (3d Cir. 1987). The second factor, whether the defendant has a meritorious
defense, is a dispositive threshold question. $55,518.05 in U.S. Currency, 728 F.2d
at 195. Though motions to vacate entry of default and motions to vacate entry of
default judgment consider the same factors, the former are held to a more lenient
standard. See Feliciano v. Reliant Tooling Co. Ltd., 691 F.2d 653, 656 (3d Cir.
1982) (“Less substantial grounds may be adequate for setting aside a default than
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would be required for opening a judgment”).
Although the “good cause” threshold for vacating default is low, Defendants’
briefing suffers from a troubling lack of precision. It exposes a rancorous family
relationship that includes several civil and criminal proceedings that are currently
ongoing. The briefing contains the germs of meritorious defenses, but it lacks any
firm factual denials or legal defenses. Moreover, Defendants failed to attach an
Answer to the Complaint, as Local Civil Rule 7.1 requires. The court will deny the
motion due to the procedural and substantive infirmities in Defendants’ motion.
Denial is without prejudice. The Defendants may file another motion that presents
a well-stated meritorious defense and attaches a proposed Answer to the Complaint
within 30 days of the order.
IV.
MOTION FOR DEFAULT JUDGMENT
The mere fact of default does not entitle Plaintiff to judgment. To enter a
default judgment, the court must first determine whether a sufficient cause of action
has been stated, taking as true the factual allegations of the Complaint. See Chanel,
Inc. v. Gordashevsky, 558 F. Supp. 2d 532, 535-36 (D.N.J. 2008). Once a cause of
action has been established, the district courts must make explicit factual findings as
to the so-called Emcasco factors: (1) whether the party subject to default has a
meritorious defense; (2) the prejudice suffered by the party seeking default; and (3)
the culpability of the party subject to default. Joe Hand Promotions, Inc. v. Waldron,
CIV. 11-849 RBK/KMW, 2013 WL 1007398, at *4 (D.N.J. Mar. 13, 2013); Emcasco
Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987).
Even if we assume that Plaintiff has stated a valid cause of action, the three
Emcasco factors do not warrant the entry of default judgment. The Defendants may
have a meritorious defense. The briefing makes statements that sound like they
might be meritorious defenses.
Prejudice to the plaintiff exists where a defendant is judgment-proof or where
there has been a loss of available evidence or increased potential for fraud or
collusion. Julaj v. Tau Assoc. LLC, 2013 WL 4731751, at *4 (D.N.J. Sept. 3, 2013).
Plaintiff does not complain of anything that would amount to “prejudice” within the
meaning of the case law.
Finally, the Defendants do not demonstrate culpable conduct. Defendants
complain that their failure to answer was the result of being bogged down with other
litigation with this Plaintiff, some of which they claim is repetitive of this claim.
Moreover, they have promptly responded to the entry of default. Considering these
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factors along with the judicial preference against default, the court will deny the
motion for default judgment.
V.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for default judgment and
Defendants’ cross-motion to vacate default are both DENIED. Defendants may refile their motion to vacate default within 30 days of this order. An appropriate order
follows.
/s/ William J. Martini
______________________________
WILLIAM J. MARTINI, U.S.D.J.
Date: September 15, 2014
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