Filing 55

ORDER denying without prejudice 22 Motion for Default Judgment; vacating the clerk of the court's entries of default against defendants franklin lakes and linda vennik, etc. Signed by Judge John Michael Vazquez on 11/20/2020. (lag, )

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Case 2:19-cv-14115-JMV-JAD Document 55 Filed 11/20/20 Page 1 of 3 PageID: 399 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA, Plaintiff, v. Civil Action No. 19-cv-14115 JOHN A. MYCEK, SR., ADMINISTRATOR, OF THE GRETTA VENNIK ESTATE, et al. ORDER Defendants. John Michael Vazquez, U.S.D.J. THIS MATTER comes before the Court by way of Plaintiff’s unopposed motion for default judgment as to Defendants Borough of Franklin Lakes (“Franklin Lakes”) and Defendant Linda Vennik, pursuant to Fed. R. Civ. P. 55(b), D.E. 22; and it APPEARING that Rule 55(b) authorizes courts to enter a default judgment against a properly served defendant who fails to file a timely responsive pleading. Fed. R. Civ. P. 55(b). But even when a party is actually in default “the other side is not entitled to the entry of default judgment as of right, and the entry of such a judgment is left primarily to the discretion of the district court.” Sanchez v. Franzzano, No. 15-2316 (KSH)(CLW), 2016 WL 2892551, at *1 (D.N.J. May 12, 2016) (quoting Ramada Worldwide Inc. v. Abel Lodging, LLC, No. 14-2683, 2014 WL 5361914, at *1 (D.N.J. Oct. 21, 2014)); and it further APPEARING that “[i]f a default is entered against some defendants in a multi-party case, the preferred practice is for the court to withhold granting default judgment until the action is resolved on its merits against the non-defaulting defendants.” Animal Science Prods., Inc., 596 F. 1 Case 2:19-cv-14115-JMV-JAD Document 55 Filed 11/20/20 Page 2 of 3 PageID: 400 Supp. 2d at 849; see also 10A Charles A. Wright et al, Fed. Prac. & Proc. § 2690 (3d ed. 2015) (when several defendants have closely related defenses “entry of judgment also should await an adjudication of the liability of nondefaulting defendants”). This is because courts do not want to “create the risk of potentially inconsistent judgments.” Eteam, Inc. v. Hilton Worldwide Holdings, Inc., No. 15-5057, 2016 WL 54676, at *3 (D.N.J. Jan. 5, 2016) (denying motion for default judgment where allegations against defaulting and nondefaulting defendants were identical); see also Lines v. New Prime, Inc., No. 13-2163, 2016 WL 4727145, at *1 (M.D. Pa. Feb. 24, 2016) (“[I]n light of the potential for inconsistent judgments, a court should not enter default judgment against defaulting defendants when claims based upon identical allegations and theories of liability remain for trial against defendants not in default.” (citing Farzetta v. Turner & Newall, Ltd., 979 F.2d 151, 154 (3d Cir. 1986))); and it further APPEARING that, in this matter, Plaintiff alleges that Defendants may claim interests in various properties formerly owned by decedent Gretta Vennik, Defendant Linda Vennik’s mother, D.E. 1 ¶¶ 3-10, which Plaintiff seeks to foreclose federal tax liens on for Gretta Vennik’s outstanding federal income tax liabilities. Id. ¶¶ 38-51. Plaintiffs have only requested for default judgment as to Franklin Lakes and Linda Vennik. The remaining defendants answered, D.E. 9, D.E. 16, D.E. 17, D.E. 20, and appear to be actively litigating this case. Consequently, entering a default judgment at this time would not be prudent due to the risk of potentially inconsistent judgments; and it further APPEARING that since moving for default judgment, Plaintiff filed an amended complaint 1 against all Defendants. D.E. 33. And “an amended complaint supersedes the original 1 In relevant part, the amended complaint asserts a new claim for fraudulent transfer against Linda Vennik. See D.E. 33 ¶¶ 57-68. Linda Vennik answered the amended complaint. D.E. 54. Plaintiffs 2 Case 2:19-cv-14115-JMV-JAD Document 55 Filed 11/20/20 Page 3 of 3 PageID: 401 version” and renders the Clerk’s entry of default as to Defendants Franklin Lakes and Linda Vennik “moot since the amended complaint superseded the original complaint.” Auto. Rentals, Inc. v. Bama Commercial Leasing LLC, No. 117CV3877NLHKMW, 2018 WL 3159852, at *1 (D.N.J. Mar. 9, 2018) (citing Enigwe v. Gainey, No. CIV.A. 10-684, 2012 WL 213510, at *3 (E.D. Pa. Jan. 23, 2012) (“The filing of the Second Amended Complaint rendered the earlier Amended Complaint a nullity . . . and [plaintiff’s] request for an entry of default by [defendant] as to the Amended Complaint became moot.” (internal citation omitted)); therefore For the foregoing reasons and for good cause shown IT IS on this 20th day of November, 2020, hereby ORDERED that Plaintiff’s motion for default judgment, D.E. 22, as to Defendants Franklin Lakes and Linda Vennik, is DENIED without prejudice; and it is further ORDERED that the Clerk of the Court’s entries of default against Defendants Franklin Lakes and Linda Vennik are hereby vacated. ____________________________ John Michael Vazquez, U.S.D.J. also filed and subsequently withdrew a request for default as against Defendant Franklin Lakes regarding its failure to answer the amended complaint. D.E. 35, D.E. 37. 3

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