UNGER, Ph.D. v. SOGLUIZZO, P.J.F.P. et al

Filing 22

ORDER granting 7 Motion to Vacate Clerk's Entry of Default as to Defendant Judge Maureen P. Sogluizzo ; denying as moot 9 Motion for Default Judgment. Signed by Magistrate Judge Michael A. Hammer on 3/9/15. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
RABBI DR. ABRAHAM UNGER,
:
Ph.D.,
:
Plaintiff Pro Se,
:
:
v.
:
:
JUDGE MAUREEN P. SOGLUIZZO,
:
P.J.F.P, DANIEL PACILIO, ESQ.,
:
CHIEF JUSTICE STUART RABNER, :
MERYL G. NADLER, ESQ.,
:
and JUDGE GLENN A. GRANT,
:
J.A.D,
:
:
Defendants.
:
____________________________________:

Civil Action No. 14-4074 (ES)

ORDER

This matter having come before the Court on Defendant Judge Maureen P. Sogluizzo’s,
P.J.F.P, (“Defendant”) motion to set aside the entry of default;
and the Honorable Esther Salas, United States District Judge. having referred the matter
to the Undersigned;1
and Plaintiff Rabbi Dr. Abraham Unger, Ph.D (“Plaintiff”) opposing Defendant’s motion,
see Pl.’s Opp’n Br., D.E. 16;
and the Court having considered the parties’ submissions, the record, and the applicable
law;
and the Court deciding Defendant’s motion [D.E. 7] without oral argument pursuant to

1

A magistrate judge has the authority to set aside an entry of default, as it is not
dispositive. See Home Box Office, Inc. v. Tel-A-View Elecs., Corp., Civ. No. 86-1491
(NLH/JS), 1986 WL 12768, at *1 (E.D. Pa. Nov. 7, 1986) (rejecting contention “that the clerk’s
entry of default is dispositive” and noting that “[a]n entry of default is not a default judgment.”).

Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1;
and Federal Rule of Civil Procedure 55(c) providing, in pertinent part, that the court
“may set aside an entry of default for good cause, and it may set aside a default judgment under
Rule 60(b);”
and a decision to set aside an entry of default being primarily left to a court’s own sound
discretion, see United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984)
(citing Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951));
and courts disfavoring default because “the interests of justice are best served by
obtaining a decision on the merits.” Choice Hotels Int'l, Inc. v. Pennave Assocs., Inc., 192
F.R.D. 171, 173 (E.D. Pa. 2000); see also $55,518.05 in U.S. Currency, 728 F.2d at 194-95 (“We
require doubtful cases to be resolved in favor of the party moving to set aside the default
judgment ‘so that cases may be decided on their merits.”’);
and the Third Circuit indicating that the standard for setting aside a default is less
stringent than setting aside a default judgment, Feliciano v. Reliant Tooling Co., 691 F.2d 653,
656-57 (3d Cir. 1982) (stating that “[t]here is a distinction between a default standing alone and a
default judgment,” and “[l]ess substantial grounds may be adequate for setting aside a default
than would be required for opening a judgment”); accord Mettle v. First Union Nat’l Bank, 279
F. Supp. 2d 598, 601 (D.N.J. 2003);
and the Third Circuit requiring that courts consider four factors when deciding to vacate
the 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);

2

and, even though courts weigh all four factors, the threshold question is generally
whether the defendant asserts a meritorious defense; see 55,518.05 in U.S. Currency, 728 F.2d at
195;
and the Court finding that Defendant has asserted a meritorious defense;2

2

Whether a defendant asserts a meritorious defense is traditionally the most important
factor. See Paris v. Pennsauken Sch. Dist., No. 12-7355 (NLH/JS), 2013 WL 4047638, at *2
(D.N.J. Aug. 9, 2013). A meritorious defense requires more than a mere denial of the claims;
indeed, a defendant must “set forth with some specificity the grounds for his defense.” Harad v.
Aetna Casualty & Surety Co., 839 F.2d 979, 982 (3d Cir. 1988). Typically, a party establishes a
meritorious defense where “allegations of defendant’s answer, if established on trial, would
constitute a complete defense to the action.” Tozer, 189 F.2d at 244; see also World Entm't Inc.
v. Brown, 487 F. App'x 758, 761 (3d Cir. 2012). However, the Court is not required to resolve
legal issues. See Emcasco, 834 F.2d at 74. Rather, a proffered defense is sufficient if it is not
facially unmeritorious. See id.
In this case, Plaintiff filed a Complaint on June 25, 2014, asserting violations of 42
U.S.C. § 1983 against Defendant for her alleged unconstitutional rulings in Plaintiff’s child
custody proceedings in New Jersey Superior Court, Hudson County. See Compl., D.E. 1.
Thereafter, on July 9, 2014, Plaintiff filed an Amended Complaint modifying the factual
background, but not adding any new defendants or claims. See Am. Compl., D.E. 3.
In response, Defendant asserts that she has valid immunity defenses to Plaintiff’s claims.
See Luanh L. D’Mello Cert. in Supp. of Mot. to Vacate (D’Mello Cert.”), at ¶ 9, D.E. 7-1. To
that end, concurrently with the motion to vacate, Defendant filed a motion to dismiss, arguing,
among other things, that she is entitled to absolute judicial immunity. See Mot. to Dismiss, at
12-14, D.E. 8. Specifically, Defendant contends that the conduct that Plaintiff complains of
consists of court rulings made in Defendant’s capacity as the judge presiding over Plaintiff’s
divorce proceedings. See id. at 13. Defendant thus asserts that the alleged conduct falls within
the scope of her judicial duties and is therefore subject to absolute immunity. See id. The Court
does not need to make a finding as to whether any of the Defendant’s defenses are meritorious.
See Addison v. Reitman Blacktop, Inc. 272 F.R.D. 72, 81 (E.D.N.Y. 2010). However, the Court
finds that Defendant’s asserted immunity defense, if proved at trial, has the potential to be
meritorious, and thus, weighs in favor of granting Defendant’s motion. See Johnson v. New
Jersey, 869 F. Supp. 289, 293-94 (D.N.J. 1994) (concluding that the judge presiding over
plaintiff’s divorce and child custody action was absolutely immune from plaintiff’s subsequent
civil rights suit because the judge was acting in his judicial capacity and had jurisdiction to
decide plaintiff’s divorce and custody dispute). The Court engages in this analysis solely in the
context of weighing whether to vacate default, and takes no position on whether Defendant will
ultimately succeed in any of her defenses.
3

and the Court also finding that setting aside Defendant’s default will not prejudice
Plaintiff;3
and the Court further finding that Defendants are not culpable for their failure to
respond;4

3

Courts have explained that “[p]rejudice only accrues due to a loss of available evidence,
increased potential for fraud or collusion, or substantial reliance upon the judgment.” See Paris,
2013 WL 4047638, at *3. Prejudice does not exist here for several reasons. First, this matter is
in its early stages. Indeed, the Court has not held any conferences and discovery has yet to
begin. Second, Defendant promptly responded to the Complaint after the Court Clerk entered
default. The Clerk of the Court entered Default against Defendant on August 5, 2014. Ten days
later, on August 15, 2014, Defendant filed the instant motion and her response to the Amended
Complaint, that is, the motion to dismiss. Given the short time between the deadline to respond
to the Complaint and Defendant’s filing of her responsive pleading, that is, ten days, the Court
does not find that Plaintiff has suffered prejudice.
4

In general, a defendant’s conduct is culpable where it results from “actions taken
willfully or in bad faith.” Gross v. Stereo Component Sys., Inc., 700 F.2d 120, 123-24 (3d Cir.
1983); see also Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (noting that culpable
conduct includes acts “intentionally designed to avoid compliance with court notices . . . [and
reckless] disregard for repeated communications from plaintiffs and the court.”).
Defendant’s failure to timely respond to the Amended Complaint in this case was
inadvertent and not “willful” or in “bad faith.” See Gross, 700 F.2d at 123-24. The record
establishes that Plaintiff filed her Complaint on June 25, 2014, see Compl., D.E. 1, and thereafter
amended the Complaint on July 9, 2014, see Am. Compl., D.E. 3. On July 11, 2014, Plaintiff
served Defendant, see Executed Summons, D.E. 4, therefore making Defendant’s response due
on August 1, 2014, see Fed. R. Civ. P. 12(a)(1)(A)(i). On July 29, 2014, Deputy Attorney
General Luanh D’Mello, counsel for all Defendants, applied to the Clerk of the Court for an
extension of time to answer or otherwise respond to the Amended Complaint. See App. For
Extension of Time, D.E. 5. In that application, counsel failed to include Defendant Judge
Sogluizzo. See D’Mello Cert., at ¶ 5, D.E. 7-1; see also App. For Extension of Time, D.E. 5. As
a result, the Clerk granted the application as to all Defendants except Judge Sogluizzo. See id. at
¶ 6. Thereafter, upon Plaintiff’s request, the Clerk of the Court entered default against Judge
Sogluizzo. See id. at ¶ 7. Based on this record, the Court cannot find that Defendant acted
willfully or in bad faith. Rather, the record establishes that Defendant’s failure to timely respond
to the Amended Complaint was inadvertent. Indeed, Defendant promptly responded to the
Amended Complaint by the deadline provided by the Clerk of the Court, August 15, 2014.
Given Defendant’s inadvertence and prompt response, this factor also weighs in favor of
vacating default. See, e.g., Emcasco, 834 F.2d at 75 (finding excusable neglect where defendant
filed an answer six months after the due date).
4

and the Court finding that it need not impose alternative sanctions;5
and therefore the Court concluding that good cause exists to vacate the entry of default;
IT IS on this 9th day of March, 2015,
ORDERED that the Defendant’s motion to vacate the entry of default [D.E. 7] is
GRANTED; and it is further
ORDERED that Plaintiff’s motion for default judgment [D.E. 9] is DENIED as moot.

s/ Michael A. HammerZZZZZZZZZZZZZZZ
UNITED STATES MAGISTRATE JUDGE

5

Entry of default “should be a sanction of last, not first, resort, and courts should try to
find some alternative.” Paris, 2013 WL 4047638, at *5. Here, no evidence exists in the record
to support the harsh sanction of entry of default; indeed, as set forth above, Defendant asserts a
meritorious defense, and did not default intentionally, or in bad faith.
5