POSYTON, III v. TOWNSHIP OF WESTFIELD et al

Filing 40

ORDER, that Plaintiff's 27 Motion for Default Judgment is Denied because Plaintiff cannot claim that Defendants put in a "general appearance" by filing a motion for summary judgment, etc It is further Ordered that 32 Motion to St rike, 33 Motion for Partial Summary Judgment; 38 Motion for Reconsideration, and 39 Motion in Limine are also Denied, etc. The Clerk of the Court shall serve Plaintiff with a copy of this Order via regular mail and certified mail return receipt.. Signed by Judge John Michael Vazquez on 3/6/2018. (JB, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RONALD H. POSYTON, III,

Flaintzjf
V.

Civil Action No. 17-5 139

KEVIN O’KEEFE, et al,

ORDER

Defendants.

John Michael Vazguez, U.S.D.J.

The Court is in receipt of numerous motions filed by Plaintiff, who is proceeding pro se and in
forma pauperis, concerning this matter, and it

APPEARING that on September 19, 2017, the Court ordered (D.E. 13) that Defendants’
motion for summary judgment (D.E. 12) be administratively terminated and, further, that no

service be effectuated until the Court screened the Amended Complaint and, if applicable, ordered
the Clerk of the Court to issue summonses: and it
APPEARING that on September 29, 2017, the Court screened the Amended Complaint
pursuant to 28 U.S.C.

§ 1915(e)(2)(B) and ordered that no summonses be issued until Plaintiff first

had an opportunity to file a Second Amended Complaint addressing certain deficiencies noted in
the Court’s screening of the Amended Complaint (D.E. 15, 16); and it
APPEARING that on October 10, 2017, Plaintiff filed a Second Amended Complaint

(D.E. 18); and it

APPEARING that on October 16, 2017, the Court screened the Second Amended

Complaint and dismissed Count V with prejudice for failure to state a claim pursuant to 2$ U.S.C.

§

1915(e)(2)(B); ordered the Clerk of the Court to mail Plaintiff a transmittal letter explaining the

procedure for completing United States Marshal (“Marshal”) 285 Forms (“USM-285 Forms”); and
ordered that once the Marshal received the USM-285 Forms from Plaintiff, and the Marshal so
alerted the Clerk of the Court, the Clerk of the Court should issue summonses in connection with
the USM-285 forms and the Marshal should serve the summonses, the Second Amended
Complaint, and the Court’s screening Opinion and Order (D.E. 15, 16) to the addresses specified
on the USM-285 FonTis (D.E. 20, 21); and it
APPEARING that on October 12, 2017, the Clerk of the Court mailed Plaintiff the USM

285 Forms (D.E. 22); and it
APPEARING that on January 22, 2018, Plaintiff submitted a letter (D.E. 23) to the Clerk

of the Court requesting that summonses be issued, but that after speaking with the Marshal, the
Clerk of the Court noted on the docket that the Marshal had never received USM-2$5 Forms from
Plaintiff(D.E. 23); and it
APPEARING that on february 5, 2018, Plaintiff filed a motion for entry of default and

default judgment (D.E. 27) stating that he was not required to serve Defendants because they made
a “general appearance” through their filing of a motion for summary judgment; and it
APPEARING that on February 8, 2018, Defendants filed an Answer (D.E. 28) to the

Second Amended Complaint; and it
APPEARING that on February 9, 2018, Defendants field a brief in opposition (D.E. 30)

to Plaintiffs motion for default judgment (D.E. 27) stating that Defendants had not been served
with the Second Amended Complaint and indicating that defense counsel, on October 19, 2017,

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emailed Plaintiff and offered to accept service of the summonses and Second Amended Complaint
from Plaintiff, but that Plaintiff instead moved for entry of default and default judgment; and it
APPEARING that on February 13, 2018, Plaintiff moved to strike (D.E. 32) Defendants’

affirmative defenses from the Answer for failure to meet the heightened plausibility standard and
because Defendants allegedly waived service; and it
APPEARING that on February 21, 2018, Plaintiff filed a motion for partial summary

judgment (D.E. 33) without first seeking the permission of the Court and without any discovery
having been taken; and it
APPEARING that on March 2, 2018, Plaintiff filed a motion for reconsideration (D.E 38)

of the Court’s dismissal of Count V in its October 16, 2017 Opinion and Order (D.E. 15, 16); and
it
APPEARING that on March 2, 201$, Plaintiff also filed a motion in limine (D.E. 39); and

it
APPEARING that as of March 6, 2018, the docket reflects that the Marshal has yet to

receive USM-2$5 forms from Plaintiff;
For the foregoing reasons, and for good cause shown,
IT IS on this 6th day of March, 201$,

ORDERED that Plaintiffs motion for entry of default and default judgment (D.E. 27) is
DENIED because Plaintiff cannot claim that Defendants put in a “general appearance” by filing a

motion for summary judgment, when the Court specifically ordered (D.E. 13) the motion for
summary judgment administratively terminated and ordered that no service be effectuated until
the Court so ordered; and it is further
ORDERED that Plaintiffs motion to strike (D.E. 32) is DENIED because the heightened

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Iqbal/Twombly plausible pleading standard1 does not apply to the pleading of affirmative defenses
under Federal Rule of Civil Procedure 8(c)2 and because service was to be effectuated per the
Court’s Order (D.E. 13); and it is further
ORDERED that Plaintiffs motion for partial summary judgment (D.E 33) is DENIED

because Plaintiff did not seek the Court’s permission to file, as is required; and it is further
ORDERED that because Plaintiff is proceeding pro se, the Court is putting Plaintiff on
notice that each party may only submit one motion for summary judgment in this matter and,
therefore, if Plaintiff submits a motion for summary judgment, he must first get permission from
the assigned Magistrate Judge and he will thereafter be precluded from filing any additional
motions for summary judgment; and it is further
ORDERED that Plaintiffs motion for reconsideration (D.E. 38) is DENIED because

pursuant to Local Civil Rule 7.1(i) a motion for reconsideration must be made within fourteen days
of the entry of an order (here, October 16, 2017) and Plaintiff offers no explanation for why his
filing is months late, even though he has been actively filing multiple motions on the docket since
the entry of the Order; and it is further
ORDERED that Plaintiffs motion in limine (D.E. 39) is DENIED because it is premature,
given that motions in lirnine come after summary judgment, after a final pretrial conference, and
after the final pretrial order; and it is further

Under this standard a pleading must “state a claim that is plausible on its face,” Ashcroft
Iqbal, 556 U.S. 662, 678 (2009) (quoting Belt Atlantic Corp. V. Twombly, 550 U.S. 544, 570
(2007)).
...

1’.

Vazquez v Triad Media Sols., Inc., No. 15CVO722OWHWCLW, 2016 WL 155044, at *2
(D.N.J. Jan. 13, 2016); Newborn Bros. Co. V. Albion Eng’g Co., 299 F.R.D. 90, 97 (D.N.J. 2014).

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ORDERED that the Clerk of the Court shall serve Plaintiff with a copy of this Order via

regular mail and certified mail return receipt.

John Michael VazquoJ U.I.D.J.

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