DAVIS v. FROEHLICH et al

Filing 71

LETTER ORDER denying without prejudice Plaintiff's 67 Motion for Default Judgment. Signed by Magistrate Judge James B. Clark on 3/29/2023. (mxw)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
[phone]
CHAMBERS OF

U.S. COURTHOUSE
50 WALNUT ST. ROOM 2060
NEWARK, NJ 07102

JAMES B. CLARK, III
UNITED STATES MAGISTRATE JUDGE

March 29, 2023
LETTER ORDER

Re:

Davis v. Burke et al.
Civil Action No. 19-10620 (JMV)

Dear Mr. Davis and Counsel:
Presently pending before the Court is pro se Plaintiff’s motion for default judgment against
Defendants Christopher Shaughnessy and Ivelisse Rodriguez (the “New York Defendants”) [Dkt.
No. 67]. For the reasons set forth below, Plaintiff’s motion for default judgment [Dkt. No. 67] is
DENIED without prejudice.
By way of brief background, on April 22, 2019, Plaintiff filed a complaint [Dkt. No. 1], and
on May 20, 2019, Plaintiff filed an application to proceed in forma pauperis. [Dkt. No. 3]. On
September 17, 2019, the Court granted Plaintiff’s application to proceed in forma pauperis and
dismissed Plaintiff’s complaint in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B) without
prejudice to the refiling of an amended complaint that cured the deficiencies set forth in the Court’s
Opinion and Order. [Dkt. No. 5]. On November 25, 2019, Plaintiff filed an amended complaint
[Dkt. No. 9]. On January 30, 2020, the Court screened Plaintiff’s amended complaint pursuant to
28 U.S.C. § 1915(e)(2)(B) and again found it largely deficient and granted Plaintiff thirty days to
cure the deficiencies set forth in the Opinion and Order. [Dkt. No. 10]. Plaintiff then filed the Third
Amended Complaint on March 12, 2020 [Dkt. No. 12], and on March 16, 2020, summonses were
issued for all defendants. [Dkt. No. 13].

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On October 16, 2020, the Union County defendants answered the complaint [Dkt. No. 17], and
on January 14, 2021, the Court entered a Pretrial Scheduling Order in this matter. [Dkt. No. 21].
On August 31, 2021, Plaintiff filed a motion for pro bono counsel. [Dkt. No. 32]. In response, on
September 20, 2021, the Union County defendants filed a cross-motion to dismiss. [Dkt. No. 35].
In an Opinion and Order dated March 7, 2022, the Honorable John Michael Vazquez, U.S.D.J.,
denied the Union County defendants’ motion to dismiss. [Dkt. 49]. Judge Vazquez noted in the
Opinion and Order that “[b]ecause Plaintiff is proceeding in forma pauperis and was only
permitted to move forward with his claims against Defendant Burke, the Court is still required to
screen the [Third Amended Complaint] as to the eight other Defendants.” [Id. at 4]. Judge Vazquez
held that the claims against all eight Defendants could proceed and ordered summonses to be
issued for Defendants Christopher Shaughnessy and Ivelisse Rodriquez, i.e., the New York
Defendants. [Id. at 13].
The summonses appear to have been executed and the New York Defendants were served on
June 7, 2022, with their answers due on June 28, 2022. [Dkt. No. 57]. As the New York Defendants
had not answered or otherwise responded to the Third Amended Complaint within the time set
forth to do so, Plaintiff filed a motion for default judgment on August 8, 2022 [Dkt. No. 59], which
the Court denied without prejudice in a Letter Order issued on October 25, 2022 [Dkt. No. 62] for
Plaintiff’s failure to first have default entered against the New York Defendants as required by
Rule 55(a).
On December 16, 2022, Plaintiff requested the entry of default as to the New York Defendants
[Dkt. No. 64] which the Clerk granted on December 19, 2022. On February 22, 2023, Plaintiff
filed the instant Motion for Default Judgment [Dkt. No. 67]. Plaintiff’s notice of motion states he
is seeking “default judgment against defendant for failure to comply with order for production of

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documents.” Dkt. No. 67. The Notice of Motion further states: “Plaintiff moves the Court that
judgment be render in the [favor] of Plaintiff and against Defendant by default, as provided for by
[FRCP] 37, for failure of [Defendant] to comply with the order of this Court entered on 6/10/2022
requiring Defendant to produce certain enumerated books and writings for inspection by Plaintiff.”
Id.
Plaintiff’s motion for default judgment cannot be granted because Plaintiff seeks relief under
the wrong Federal Rule of Civil Procedure, citing to Rule 37, which governs discovery, when
motions for default judgment are governed by Rule 55. Rule 55, states, in relevant part:
(a) Entering a Default. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise, the clerk must enter the
party's default.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum
that can be made certain by computation, the clerk--on the plaintiff's
request, with an affidavit showing the amount due--must enter
judgment for that amount and costs against a defendant who has
been defaulted for not appearing and who is neither a minor nor an
incompetent person.
(2) By the Court. In all other cases, the party must apply to the court
for a default judgment. A default judgment may be entered against
a minor or incompetent person only if represented by a general
guardian, conservator, or other like fiduciary who has appeared. If
the party against whom a default judgment is sought has appeared
personally or by a representative, that party or its representative
must be served with written notice of the application at least 7 days
before the hearing. The court may conduct hearings or make
referrals--preserving any federal statutory right to a jury trial--when,
to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
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(D) investigate any other matter.
Rather than seek default judgment for the New York Defendants’ failure to appear as Fed. R. Civ.
P. 55 mandates, Plaintiff cites to Rule 37 and argues that default judgment should be granted due
to the failure of the New York Defendants “to produce certain enumerated books and writings,”
prematurely referencing discovery which the New York Defendants could not produce without
first appearing in this case. Accordingly, Plaintiff’s motion for default judgment [Dkt. No. 67] is
DENIED without prejudice.
IT IS SO ORDERED.
s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge

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