UNITED STATES v. GALLAGHER et al
Filing
31
OPINION filed. Signed by Judge Mary L. Cooper on 11/26/2012. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES,
CIVIL ACTION NO. 11-4988 (MLC)
O P I N I O N
Plaintiff,
v.
WILLIAM B. GALLAGHER, JR.,
et al.,
Defendants.
THE PLAINTIFF, United States (“the Government”), originally
brought this foreclosure action against the defendants William B.
Gallagher, Jr., Barbara A. Gallagher, 1321 Memorial Drive
Investments, Inc. (“MDI”), Monmouth Ocean Collection (“MOC”),
Schibell & Mennie, LLC (“Schibell”), Sharon Sutton, Allen Sutton,
and the State of New Jersey.
(See dkt. entry no. 1, Compl.)
The
Government subsequently amended the Complaint to include claims
against Crusader Servicing Corp. (“CSC”) and Tower Lien, LLC
(“Tower”).
(See dkt. entry no. 16, Am. Compl.)
THE GOVERNMENT now moves for two forms of relief.
entry no. 28, Mot.)
(See dkt.
First, pursuant to Federal Rule of Civil
Procedure (“Rule”) 56(a), the Government seeks summary judgment in
its favor and against William B. Gallagher, Jr., Barbara A.
Gallagher, and MOC (“the SJ Defendants”).
(See id. at 1.)
Second,
pursuant to Rule 55(b), the Government seeks entry of default
judgment against Schibell, Sharon Sutton, Allen Sutton, and the
State of New Jersey (“the DJ Defendants”).
(See id. at 1-2.)
No
defendant has opposed the Motion.
THE COURT now resolves the Motion on the papers and without
oral argument.
See L.Civ.R. 78.1(b); see also Anchorage Assocs. v.
V.I. Bd. of Tax Review, 922 F.2d 168, 174-76 (3d Cir. 1990)
(district court may resolve unopposed summary judgment motion “on
the basis of what [movant] put[s] before the court”).
THE SJ DEFENDANTS
THE COURT will deny the Motion without prejudice, insofar as
the Government seeks summary judgment in its favor and against the
SJ Defendants, because the Government has not demonstrated that it
is entitled to such relief.
The Government has informed the Court
of facts purportedly bearing on the Motion.
(See dkt entry no.
28-1, Statement of Material Facts; dkt. entry no. 28-2, Br. in
Supp. at 2-5.)
But the Government has failed to demonstrate that
it is entitled to judgment as a matter of law, either by reference
to Rule 56, or to applicable statutes and case law.1
1
The Government cites to 26 U.S.C. § 7403 for the proposition
that “[t]he federal tax liens against the Gallaghers’ property may
be foreclosed, and the property should be sold.” (See Br. in Supp.
at 5.) But the Government, other than noting that “district courts
may exercise a degree of equitable discretion in § 7403
proceedings,” fails to inform the Court of the legal standards
applied in such proceedings. (See id. at 5-6.)
2
THE COURT notes further that the Government, while seeking
summary judgment in its favor and against MOC, has suggested that
MOC “should be dismissed as a party to this action.”
at 1, with Br. in Supp. at 7-8.)
(Compare Mot.
The Government, if moving anew
for the entry of summary judgment, should clarify whether: (1) it
seeks summary judgment in its favor and against MOC, or (2) more
appropriately, the claims asserted against MOC should be dismissed.
THE DJ DEFENDANTS
THE COURT will also deny the Motion insofar as the Government
seeks the entry of default judgments against the DJ Defendants.
The entry of default judgment lies in the discretion of the
district court.
See Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d
Cir. 1984).
THE PROCEDURAL HISTORY of the action guides the Court’s
decision.
The Government filed the Amended Complaint on December
15, 2011.
(See Am. Compl.)
The Amended Complaint raises claims
against the DJ Defendants, but was not served on the DJ Defendants.
(See generally id.; dkt. entry no. 16-1, Certificate of Serv.)
The
Government thereafter sought and secured the Clerk’s entry of
default against the DJ Defendants, on the basis of the Complaint.
(See dkt. entry no. 19, Req. for Default; text entry immediately
following dkt. entry no. 19 (entering default against DJ
Defendants).)
The Government later filed the Second Amended
3
Complaint.
(See dkt. entry no. 25, 2d Am. Compl.)
Like the
Amended Complaint, the Second Amended Complaint raises claims
against but was not served upon the DJ Defendants.
(See id.; dkt.
entry no. 25-1, Certificate of Serv.)
IT APPEARS under these circumstances that the interests of
justice are best served by denying the part of the Motion
concerning entry of default judgment against the DJ Defendants.
The Court will, however, deny that part of the Motion without
prejudice.
If the Government wishes to move anew for the entry of
default judgment against the DJ Defendants, it may do so after:
(1) personally serving the Second Amended Complaint upon the DJ
Defendants; (2) docketing proof of service; and (3) requesting the
Clerk’s entry of default against the DJ Defendants.2
THE OTHER DEFENDANTS: MDI, CSC, AND TOWER
THE GOVERNMENT failed to bring the Second Amended Complaint
against MDI, CSC, and Tower.
(See 2d Am. Compl.)
The Court thus
deems the Government to have voluntarily terminated MDI, CSC, and
Tower from the action, and will order the Clerk of the Court to
designate the action terminated insofar as it was brought against
them.3
2
The Government may, if necessary, move before the Magistrate
Judge to effect service by alternate means.
3
The Government may move before the Magistrate Judge for
leave to file a Third Amended Complaint if it wishes to proceed
against MDI, CSC, or Tower in this action.
4
CONCLUSION
THE COURT, for the reasons stated above and for good cause
appearing, will enter a separate Order: (1) denying the Motion
without prejudice; and (2) ordering the Clerk of the Court to
designate the action terminated insofar as it was brought against
MDI, CSC, and Tower.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:
November 26, 2012
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