THOMPSON v. WARREN et al

Filing 50

ORDER DENYING 40 Motion for Default Judgment ; GRANTING 44 Motion for Extension of Time to Answer. Defendant Barnes has leave to file an answer to Plaintiffs complaint as within time, no later than fourteen (14) days after the date of this Order. Signed by Judge Joel A. Pisano on 10/2/2014. (kas, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD THOMPSON,
Plaintiff,
v.
CHARLES WARREN, et al.,
Defendants.

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Civil Action No. 13-4334 (JAP)

ORDER

Before the Court is a motion for default judgment against Defendant Jimmy Barnes
brought by Plaintiff Richard Thompson, pro se [ECF No. 40]. Defendant Barnes opposes this
motion, and has also cross-moved for leave to file an answer to Plaintiff’s complaint as within
time [ECF No. 44].
Here, Plaintiff successfully served Defendant Barnes on June 4, 2014. Defendant Barnes
was obligated to answer or otherwise move by June 25, 2014. On August 22, 2014, Plaintiff
contemporaneously filed an application for the entry of default and moved to enter default
judgment against Defendant Barnes. Under Federal Rule of Civil Procedure 55, a party who
wishes to obtain default judgment must first request that the Clerk of the Court “enter
the…default” of the party that has not answered or “otherwise defend[ed].” Fed. R. Civ. P.
55(a). Only after the Clerk has entered default may a subsequent default judgment under Rule
55(b) be entered by the Court. See, e.g., McGann v. Collingswood Police Dep't, Civil Action
No. 10-cv-3458, 2011 U.S. Dist. LEXIS 70065, at *24–25 (D.N.J. June 28, 2011). Here,
Plaintiff contemporaneously filed his application for entry of default with his motion for default.
Because Plaintiff has inappropriately moved for default judgment before entry of default was
entered against Defendant Barnes, his motion for default judgment must be denied. See Husain

v. Casino Control Comm’n, 265 F. App’x 130, 133 (3d Cir. 2008).
Under Federal Rule of Civil Procedure 6(b)(1)(B), if the time to file a responsive
pleading to a plaintiff's complaint has expired, the responding party may file a motion for an
extension of time. The court may grant this motion for good cause, but only after finding that the
party's failure to file a timely response was due to “excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B); Drippe v. Tobelinski, 604 F.3d 778, 785 (3d Cir. 2010). When determining whether
a party has shown “excusable neglect,” courts take into account “all relevant circumstances
surrounding the party’s omission,” including the danger of prejudice to the opposing party, the
length of the delay in responding and its potential impact on judicial proceedings, “the reason for
the delay, including whether it was within the reasonable control of the movant, and whether the
movant acted in good faith.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.
380, 395 (1993).
Here, Defendant Barnes’s current ross-motion was filed approximately two months after
his deadline to file a response to Plaintiff’s complaint. While this is not an insignificant amount
of time, the Court finds that the multiple Defendants in this case who did timely file responses to
Plaintiff’s complaint prevent this delay from having any real impact on the judicial proceedings;
in other words, the civil action as a whole has meaningfully proceeded in the absence of
Defendant Barnes. For this same reason, the Court finds that Plaintiff would not be prejudiced if
the Court grants Defendant Barnes’s cross-motion. Finally, Defendant Barnes’s explanation for
the delay indicates that the reason for the delay was not within the reasonable control of
Defendant Barnes and that he is currently acting in good faith. Specifically, Defendant Barnes,
as a state employee, had to request representation by the Office of the Attorney General in this
matter. See N.J. Stat Ann. §59:10A-2. Defendant Barnes had timely made a written request for

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representation when he was served. However, his written request was misfiled by the Office of
the Attorney General. See Declaration of Gregory R. Bueno (“Bueno Decl.”) ¶ 6. This error was
only realized when Plaintiff filed his motion for default judgment against Defendant Barnes, at
which point the process for Defendant Barnes’s request for Attorney General representation was
undertaken and completed within days. See id. at ¶¶ 4, 6, 11. Defendant Barnes filed his motion
for an extension of time immediately after his counsel entered an appearance on his behalf.
Accordingly, it appears that Defendant Barnes is, and at all times has been, acting in good faith.
The delay appears to be unintentional and not within Defendant Barnes’s control. For these
reasons, the Court finds that Defendant Barnes’s failure to timely respond to Plaintiff’s
complaint was due to excusable neglect, and thus grants Defendant Barnes’s cross-motion under
Rule 6(b)(1)(B).
THEREFORE, it is on this 2nd day of October, 2014,
ORDERED that Plaintiff’s motion for default judgment [ECF. No. 40] is DENIED; and
it is further
ORDERED that Defendant Barnes’s cross-motion for an extension of time to file a
response to Plaintiff’s complaint [ECF No. 44] is GRANTED, and Defendant Barnes has leave
to file an answer to Plaintiff’s complaint as within time, no later than fourteen (14) days after the
date of this Order; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Plaintiff by
regular U.S. mail.

/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.

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