GOULD v. O'NEAL et al
ORDER granting 13 Motion to Vacate. Robert Grady's answer shall be filed within 10 days of the entry of this Order. Signed by Magistrate Judge James B. Clark on 7/19/17. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-100 (JMV)
OPINION AND ORDER
DETECTIVE ROBERT O’NEAL,
CLARK, Magistrate Judge
THIS MATTER comes before the Court on a Motion by Defendant, Robert Grady, to
vacate the default entered on February 27, 2017 [Dkt. No. 11]. For the reasons set forth below,
Robert Grady’s Motion to vacate the entry of default is GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed his Complaint on January 6, 2017, initiating a deprivation of rights action
against Defendants Detective Robert O’Neal, Sergeant John Campo, and Assistant Prosecutor
Robert Grady (“Grady”). [See Dkt. No. 1]. On February 1, 2017, Grady was personally served
the Summons and Complaint. [See Dkt. No. 9]. On February 27, 2017, having received no
response to the Complaint, Plaintiff filed a request for entry of default against Grady, and default
was entered on the same date. [See Dkt. Nos. 10, 11]. Subsequently, on February 28, 2017,
Grady made his first appearance in this action and filed the present Motion to vacate the default
entered against him. [See Dkt. Nos. 12, 13]. Plaintiff opposes the Motion to vacate and argues it
should be denied. [See Dkt. No. 14]. In support of his Motion, Grady claims that the entry of
default should be vacated because Plaintiff will not suffer any prejudice, Grady has a meritorious
defense for failure to state a claim, and the claim is barred by offered immunity. [See Dkt. No.
13]. However, Plaintiff opposes the Motion and argues that it should be denied because Grady
“fails to proffer a meritorious defense, fails to demonstrate that Grady’s default was ‘excusable,’
and improperly relies on an unsworn ‘certification.’” [See Dkt. No. 14].
A. Grady’s Motion to Vacate the Entry of Default [Dkt. No. 13]
The entry of default and default judgment are governed by Federal Rule of Civil
Procedure 55. The power to grant default judgment “has generally been considered an ‘inherent
power,’ governed not by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases.” Hritz v.
Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (citations omitted). Because a default
judgment prevents a plaintiff's claims from being decided on the merits, “this court does not
favor entry of defaults or default judgments.” United States v. $55,518.05 in U.S. Currency, 728
F.2d 192, 194 (3d Cir. 1984). Accordingly, the Third Circuit has clarified that, while “the entry
of a default judgment is left primarily to the discretion of the district court,” this “discretion is
not without limits,” and cases should be “disposed of on the merits whenever practicable.” Hritz,
732 F.2d at 1181 (citations omitted); see also $55,518.05 in U.S. Currency, 728 F.2d at 194–95.
Pursuant to Rule 55(c), “[t]he court may set aside an entry of default for good cause.”
Fed. R. Civ. P. 55(c). In exercising its discretion to vacate the entry of default, the Court must
consider three factors: “(1) whether the plaintiff will be prejudiced; (2) whether the defendant
has a meritorious defense; and (3) whether the default was a result of the defendant’s culpable
conduct.” Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008) (citing $55,518.05 in
U.S. Currency, 728 F.2d at 195).
Any doubts in this inquiry are “to be resolved in favor of the party moving to set aside the
default judgment so that cases may be decided on their merits.” Ford v. Consigned Debts &
Collections, Inc., No. 09–3102, 2010 WL 2758182, at *2 (D.N.J. July 12, 2010) (citing
$55,518.05 in U.S. Currency, 728 F.2d at 194–95). “‘[M]atters involving large sums should not
be determined by default judgment if it can reasonably be avoided,’ since ‘the interests of justice
are best served by a trial on the merits.’” Livingston Powdered Metal, Inc. v. N.L.R.B., 669 F.2d
133, 136–37 (3d Cir. 1982) (quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245
(3d Cir. 1951)).
i. Meritorious Defense
The Third Circuit “consider[s] the meritorious-defense factor the ‘threshold issue. . . .’”
Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance Club, Inc., 175 F. App'x 519, 522 (3d Cir.
2006) (quoting Hritz, 732 F.2d at 1181). The defendant is required to “set forth with some
specificity the grounds for his defense.” Id. (citation omitted). The court then “look[s] at the
substance of that defense to determine whether it is meritorious.” Id. (citation omitted).
However, the court “need not decide the legal issue’ at this stage of review.” Id. (quoting
Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)).
Here, Grady asserts that the entry of default should be vacated because he has a
meritorious defense to raise in opposition to Plaintiff’s claims. According to Grady, he is
entitled to absolute prosecutorial immunity against Plaintiff’s false arrest and malicious
prosecution allegations. Grady argues that acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or trial are entitled to the protections of absolute immunity.
[See Dkt. Nos. 13, 17.] Furthermore, Grady argues that in the unlikely event that absolute
immunity does not cover all claims asserted against him, he would then assert the defense of
qualified immunity in a subsequent motion or submission. [See Dkt. No. 17]. Grady claims that
qualified immunity shields government officials from liability for civil damages as long as their
conduct does not violate a clearly established constitutional right of which a reasonable person
should have known. Id. While Plaintiff contends that absolute immunity is not applicable to this
case, Plaintiff has not presented sufficient evidence to lead the Court to the same conclusion.
Accordingly, the Court finds that Grady’s claim that he is immune from civil liability, under
absolute or qualified immunity, is enough to consider its defense meritorious at this phase of
ii. Culpable Conduct
To find a defendant's conduct culpable, “more than mere negligence [must] be
demonstrated.” Hritz, 732 F.2d at 1183. “Reckless disregard for repeated communications from
plaintiffs and the court ... can satisfy the culpable conduct standard.” Id. Culpable conduct, in
this context, “is conduct that is taken willfully or in bad faith.” Hill v. Williamsport Police Dept.,
69 F. App'x 49, 52 (3d Cir. 2003) (citations omitted).
Here, there is no evidence that Grady’s delayed response to Plaintiff’s Complaint was due
to anything more than negligence. In his Motion, Grady asserts that he requested representation
from the Attorney General’s Office on or about February 3, 2017, just two days after he was
served. On February 28, 2017, counsel entered an appearance on Grady’s behalf and promptly
filed this Motion to avoid any further delay. Grady argues that the delay in responding to
Plaintiff’s Complaint was due to the time-consuming process of obtaining representation from
the Attorney General’s Office, and is not attributable to his own actions. While Plaintiff
contends that Grady failed to demonstrate “good cause” for his default, Grady’s actions were no
worse than merely negligent and were not acts designed to avoid compliance with Court rules.
Accordingly, in the absence of evidence of the requisite willfulness or bad faith on the part of
Grady, the Court finds that Grady’s failure to timely respond to the Complaint does not warrant a
refusal to set aside the default. See Blue Ribbon Commodity Traders, Inc. v. Quality Foods
Distrib., at *3 (E.D.Pa. Dec. 11, 2007) (“Even where neglect is inexcusable, and where the Court
cannot condone a defendant's failure to respond to a lawsuit for an extended period of time,
culpable conduct warranting the refusal to set aside default must rise to the level of ‘flagrant bad
faith,’ and ‘callous disregard of responsibility.’” (citation omitted)).
iii. Prejudice to Plaintiff
While the Court is mindful of Plaintiff’s desire to move this case along, “delay in
realizing satisfaction or the fact that the plaintiff will have to prove its case on the merits are
rarely sufficient to prevent a court from opening up a default.” Itche Corp. v. G.E.S. Bakery,
Inc., 2008 WL 4416457 at *2 (D.N.J. Sept. 24, 2008) (citing Feliciano v. Reliant Tooling Co.,
691 F.2d 653, 656–57 (3d Cir. 1982)). Prejudice under this prong accrues due to a “loss of
available evidence, increased potential for fraud or collusion, or substantial reliance upon the
judgment.” Id. “[T]he inevitable dimming of witnesses' memories” is also recognized as a form
of prejudice. Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). Here, Plaintiff does
not contend that he will be so prejudiced by the Court vacating the entry of default and allowing
Grady to respond to the Complaint, and there is no indication or assertion before the Court that
any evidence has been lost or that Plaintiff will have any increased difficulty in obtaining
Accordingly, because the Court finds that Grady has set forth a meritorious defense, that
Grady’s conduct in failing to respond to the Complaint is not culpable, and that Plaintiff will not
suffer prejudice if Grady is permitted to respond to the Complaint, Grady’s Motion to vacate the
entry of default is GRANTED.
CONCLUSION AND ORDER
The Court having considered the papers submitted pursuant to Fed. R. Civ. P. 78, and for
the reasons set forth above;
IT IS on this 19th day of July, 2017,
ORDERED that Robert Grady’s Motion to vacate the entry of default [Dkt. No. 13] is
GRANTED; and it is further
ORDERED that Robert Grady’s answer shall be filed within ten (10) days of the entry
of this Order.
s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge
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