KARCHER v. DEPIERRO et al

Filing 21

MEMORANDUM ORDER denying 18 Pltf's Motion for Default Judgment; granting 20 Deft Richard Depierro's Cross Motion to Vacate Entry of Default; that Deft shall file his Answer with the Court within 10 days of the date of the filing of this Order; that upon the filing of the Answer, entry of default as to Deft Richard Depierro be vacated and the matter restored to the active case calendar. Signed by Judge Anne E. Thompson on 9/6/2012. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Brian J. KARCHER,
Plaintiff,

Civil No. 11-2911

v.
Rich DEPIERRO, et al.,

MEMORANDUM ORDER

Defendant.

THOMPSON, U.S.D.J.
This matter has come before the Court upon Plaintiff Brian J. Karcher’s Motion for
Default Judgment against Rich Depierro [docket #18]; and Defendant Richard Depierro having
opposed the motion and having filed a Cross Motion to Vacate Entry of Default [20], noting that
he had prepared and served a response to the Complaint, but did not realize he must file the same
with the Court; and the Court having reviewed and considered the submissions of the parties and
without oral argument pursuant to Federal Rule of Civil Procedure 78; and the Court finding that
pursuant to Federal Rule of Civil Procedue 55(c), “[f]or good cause shown the court may set
aside an entry of default”; and the Court further finding that “[i]n determining whether to set
aside an entry of default, the Court looks at (1) whether the plaintiff will be prejudiced; (2)
whether the defendant has a meritorious defense; and (3) whether the default was the result of the
defendant’s culpable conduct” (Malik v. Hannah, Civil No. 05-3901, 2007 WL 2892648, *1
(D.N.J. Sept. 27, 2007) (citing Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000)));
and the Court further finding that “’[a] motion to set aside a default is addressed to the discretion
of the court [and a]ny doubt should be resolved in favor of setting aside defaults so that cases
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may be decided on their merits’” (Id. (quoting Alopari v. O’Leary, 154 F. Supp. 78, 80-81
(E.D.Pa. 1957))); and the Court noting that Plaintiff has not filed an opposition to Defendant’s
motion; and the Court finding that good cause has been shown to set aside the default and that
vacating the default would not prejudice Plaintiff; and the Court further recognizing the
procedural impropriety of the motion for default being filed before default had been entered by
the Clerk pursuant to Federal Rule of Civil Procedure 55(a);
IT IS on this 6th day of September, 2012,
ORDERED that Plaintiff Brian J. Karcher’s Motion for Default Judgment [docket #18] is
DENIED; and it is
ORDERED that Defendant Richard Depierro’s Cross Motion to Vacate Entry of Default
[20] is GRANTED; and it is
ORDERED that Defendant shall file his Answer, flagged as such on the docket, with the
Court within 10 days of the date of the filing of this Order; and it is
ORDERED that upon the filing of the Answer entry of default as to Defendant Richard
Depierro be vacated and the matter restored to the active case calendar; and it is finally
ORDERED that a copy of this Order shall be mailed to all parties who have not received
same by ECF.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

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