IANUALE et al v. BOROUGH OF KEYPORT et al
Filing
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OPINION filed. Signed by Judge Freda L. Wolfson on 8/16/2017. (mps)
**NOT FOR PUBLICATION**
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
Civil Action No. 16-9147 (FLW)(LHG)
ROBERT J. IANUALE and PHILIP J.
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IANUALE,
:
:
OPINION
Plaintiffs,
:
:
v.
:
:
BOROUGH OF KEYPORT, KEYPORT
:
POLICE DEPARTMENT, CHIEF OF
:
POLICE GEORGE CASALETTO, in his :
personal, individual, and official capacities, :
SERGEANT MICHAEL A. FERM, in his :
personal, individual, and official capacities, :
PATROLMAN KEVIN BENNETT, in his :
personal, individual, and official capacities, :
PATROLMAN GREGORY JOHNSON, in :
his personal, individual, and official
:
capacities, JOHN DOE KEYPORT
:
POLICE OFFICERS 1-25 {fictitious
:
employees of the Keyport Police
:
Department}, in their personal, individual, :
and official capacities,
:
:
Defendants.
:
___________________________________ :
WOLFSON, United States District Judge:
Before the Court are the cross motions of Plaintiffs Robert J. Ianuale and Philip J. Ianuale
(“Plaintiffs”), pro se, for default judgment against Defendants Borough of Keyport, Keyport
Police Department, Chief of Police George Casaletto, and Sergeant Michael A. Ferm
(“Defendants”), and of Defendants to vacate the entry of default and permit the filing of
responsive pleadings. Because the Court finds good cause exists to vacate the defaults entered
against Defendants, Defendants’ cross motions to vacate default are granted, and Plaintiffs’
motion for default judgment is denied.
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I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Plaintiffs filed the Complaint in this action on December 13, 2016, seeking punitive and
compensatory damages for alleged violations of Plaintiffs’ constitutional rights under the Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and for
various violations of New Jersey state law. The Complaint raises fifteen counts:
Count I, for wrongful arrest and malicious prosecution, raised against Defendants
Michael A. Ferm, Kevin Bennett, and Gregory Johnson;
Count II, for false arrest and false imprisonment under the Fourth and Fourteenth
Amendments, pursuant to 42 U.S.C. § 1983, raised against all Defendants;
Count III, for failure to intervene or intercede, pursuant to § 1983, raised against
Defendants Ferm, Bennett, and Johnson;
Count IV, for malicious prosecution, raised against all Defendants;
Count V, for failure to train, under a theory of supervisory liability pursuant to § 1983,
raised against Defendants Keyport, Keyport Police Department, and Casaletto;
Count VI, for failure to train, under a theory of municipal liability pursuant to § 1983,
raised against Defendants Keyport, Keyport Police Department, and Casaletto;
Count VII, for unlawful seizure and deprivation of liberty under the New Jersey Civil
Rights Act (“NJCRA”), raised against Defendants Ferm, Bennett, and Johnson;
Count VIII, for deprivation of rights under the NJCRA, raised against all Defendants;
Count IX, for intentional infliction of emotional distress, raised against Defendants Ferm,
Bennett, and Johnson;
Count X, for assault and battery, raised against Defendants Bennett and Keyport;
Count XI, for malicious prosecution, raised against Defendants Bennett and Keyport;
Count XII, for assault and battery, raised against Defendants Ferm and Keyport;
Count XIII, for civil conspiracy, raised against all Defendants;
Count XIV, for negligent hiring and training, raised against Defendants Keyport and
Keyport Police Department;
Count XV, for invasion of privacy, raised against all Defendants;
Count XVI, for abuse of process, raised against all Defendants; and
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Count XVII, for violation of Plaintiffs’ due process rights, pursuant to § 1983, raised
against all Defendants;
Defendants were served with the Complaint on January 4, 2017. Defendants’ answers or
other responsive pleadings were due on January 25, 2017. Defendants Keyport, Keyport Police
Department, Casaletto, and Kerm did not respond to the Complaint by January 25. The Clerk
entered default against Defendants on January 27, 2017. Plaintiffs moved for entry of default
judgment against Defendants Keyport, Keyport Police Department, Casaletto, and Kerm later the
same day.
John L. Bonello, Esq., was assigned the representation of Defendants Keyport, Keyport
Police Department, and Casaletto by Defendants’ insurance carrier on January 20, 2017. Mr.
Bonello was on a family vacation in Mexico at the time of his assignment and did not review a
copy of the Complaint until January 30, 2017, upon his return to the United States.
Patricia B. Adams, Esq., was assigned to the representation of Defendant Kerm by
Defendants’ insurance carrier on January 27, 2017, on which date Ms. Adams also became aware
that default had already been entered against her client. Ms. Adams, by letter dated January 30,
2017, promptly requested proof of service and Plaintiffs’ consent to an order vacating default.
Plaintiffs did not respond to Ms. Adams request.
Defendants Keyport, Keyport Police Department, and Casaletto, opposed Plaintiffs’
motion for default judgment and cross moved to vacate default on February 13, 2017. Defendant
Kerm opposed Plaintiffs’ motion and cross moved to vacate default on February 16, 2017.
II. STANDARD OF REVIEW
“A judgment setting aside the entry of default is within a district court’s discretion, and
may only be made ‘for good cause.’” Doe v. Hesketh, 828 F.3d 159, 174–75 (3d Cir. 2016)
(quoting Fed. R. Civ. P. 55(c)). “In exercising that discretion and determining whether ‘good
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cause’ exists, [the Third Circuit] ha[s] instructed district courts to consider the following factors:
‘(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.’” Hesketh, 828
F.3d at 175 (quoting United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir.
1984)). “This discretion is not without limits, however, and [the Third Circuit] ha[s] repeatedly
stated [its] preference that cases be disposed of on the merits whenever practicable.” Hritz v.
Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984). See also $55,518.05 in U.S. Currency, 728
F.2d at 194–95 (“this court does not favor entry of defaults or default judgments. We require
doubtful cases to be resolved in favor of the party moving to set aside the default judgment so
that cases may be decided on their merits.”) (quotation omitted).
III. ANALYSIS
In this case it is manifest that default against all cross-moving Defendants should be
vacated. All three factors of the Court’s discretionary analysis weigh in favor of a finding of
good cause to vacate default.
A. Meritorious Defense
In evaluating the present motions to vacate default, “[t]he threshold question . . . is
whether [defendant] has established a meritorious defense. . . . The showing of a meritorious
defense is accomplished when ‘allegations of defendant’s answer, if established on trial, would
constitute a complete defense to the action.’” $55,518.05 in U.S. Currency, 728 F.2d at 195
(quoting Tozer v. Charles A. Krause Mill. Co., 189 F.2d 242, 244 (3d Cir. 1951)). The defendant
must “set forth with some specificity the grounds for his defense,” so the court may determine its
substantive merit. Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 982 (3d Cir. 1988).
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1. Keyport, Keyport Police Department, and Casaletto
Defendants Keyport, Keyport Police Department, and Casaletto have presented
meritorious defenses to all of Plaintiffs’ claims. Defendants contend that in Counts II, III, V, and
VI, Plaintiffs impermissibly seek to hold Defendants Keyport, Keyport Police Department, and
Casaletto vicariously liable for the conduct of individual officers and/or have failed to meet the
standards of pleading and proof for municipal or supervisory liability set forth by the Supreme
Court in Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Defendants
argue that Plaintiffs’ inability to satisfy the Monell standard forecloses Plaintiffs’ claims in
Counts II, III, V, and VI as a matter of law. Defendants further argue that Plaintiffs have failed to
plead and cannot prove municipal or supervisory liability under the NJCRA in Counts VII and
VIII. Further, Defendants contend that Counts IV, IX, X, XI, XII, XIII, XIV, XV, and XVI are
state law claims subject to the New Jersey Tort Claims Act (“NJTCA”). Defendants argue that
they are entitled to NJTCA immunity from Counts IV, X, XI, XII, XV, and XVI, and factually
dispute Counts IX, X, XI, XII, XV, XVI, XIII, and XIV. Finally, Count I is not raised against
Defendant Keyport, Defendant Keyport Police Department, or Defendant Casaletto.
2. Sergeant Kerm
Sergeant Kerm has raised meritorious defenses to Plaintiffs’ claims. Sergeant Kerm
claims that he is entitled to qualified immunity from Plaintiffs’ federal constitutional claims
(Counts II, IV, and XVII) and state NJCRA claims (Counts VII and VIII). Sergeant Kerm claims
that he is entitled to NJTCA immunity from Plaintiffs’ NJ state law claims for malicious
prosecution (Counts I and IV), assault and battery (Count XII), negligence (Count XIV),
invasion of privacy (Count XV), and abuse of process (Count XVI). Defendant Kerm further
argues that, as pleaded, Counts III (failure to intervene), V (failure to train), VI (unlawful policy
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or custom), XIV (negligence), and XVII (due process violations) concern alleged inadequacies in
training and supervision which are not properly raised against Defendant Kerm as an individual
police officer. Defendant Kerm is not clear in briefing whether Count IX (intentional infliction of
emotional distress) fails on immunity grounds or factual grounds, but asserts that he has raised
defenses to all of Plaintiff’s state law tort claims. At this stage, Sergeant Kerm’s claims of
immunity, coupled with general factual denials are sufficient to present a defense to Count IX.
Sergeant Kerm contends that Count XIII for civil conspiracy fails to state a claim as inadequately
pleaded. Finally, Counts X and XI are not raised against Sergeant Kerm.
3. Plaintiffs’ Response
Plaintiffs respond that Defendants have failed to allege their defenses with the requisite
specificity. I disagree. Defendants’ claims of entitlement to various forms of immunity state the
critical facts, which, taken together with Plaintiffs’ own allegations and once supported with
appropriate affidavits and exhibits, would be sufficient for legal resolution of Defendants’
defenses. Defendants’ arguments factually disputing Plaintiffs’ claims do, in some cases, take the
form of simple denials. The Court nevertheless finds these defenses sufficiently alleged because,
in the absence of more specific allegations in Plaintiffs’ Complaint, Defendants cannot be
expected to identify more specific responsive facts. For example, Plaintiffs’ claims for failure to
train do not identify specific deficiencies in any training program to which Defendants might
have responded. The cross-moving Defendants, therefore, have raised meritorious defenses to
Plaintiffs’ claims on immunity and factual grounds with the requisite specificity.
B. Prejudice
The Court next looks to whether any evidence has been introduced to “support a claim of
prejudice justifying denial of relief” from the defaults. Feliciano v. Reliant Tooling Co., 691 F.2d
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653, 657 (3d Cir. 1982). For the Court to deny relief from the defaults something must “suggest[]
that [Plaintiff’s] ability to pursue [his] claim has been hindered since the entry of the default,” for
example assertions that Plaintiff has suffered “loss of available evidence, increased potential for
fraud or collusion, or substantial reliance” upon the default. Ibid.
Here, Defendants were required to file an answer or other responsive pleading to the
Complaint on or before January 25, 2017. Defendants Keyport, Keyport Police Department, and
George Casaletto appeared in the case and moved to vacate default less than three weeks later on
February 13, 2017. Defendant Michael firm entered an appearance and moved to vacate default
just a few days later on February 16, 2017. Plaintiffs’ Complaint, construed in the light most
favorable to Plaintiffs, alleges a pattern of conduct by Defendants spanning from November 30,
2013 to May 15, 2015 — with an alleged continuing violation thereafter in the form of Plaintiffs’
denial of a speedy trial. This action was not filed until December 13, 2016. Defendants’
approximately three-week delays in responding to the Complaint cannot have prejudiced
Plaintiffs’ prosecution of claims that were already over a year old, and in some cases several
years old at the time the Complaint was filed. The Court also finds that Plaintiffs have alleged no
lost evidence, increased potential for fraud or collusion, or substantial detrimental reliance by
Plaintiffs on the default during the three week period at issue, nor would such allegations be
credible given the short duration of the period.
Plaintiffs’ arguments in briefing concerning prejudice are based on acts allegedly
undertaken by Defendants during the more than two-year duration of the criminal proceedings
against Plaintiffs. Plaintiffs argue that, in light of Defendants’ past conduct, no additional delay
of any length should be permitted by this Court. The question before this Court on the present
cross motions to vacate default, however, is not whether Plaintiffs were injured by Defendants’
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alleged past conduct — going to the merits of Plaintiffs’ claims — but whether the three-week
delays in responding to Plaintiffs’ present civil Complaint gave rise to any prejudice to Plaintiffs.
On the basis of the submissions before it, this Court concludes that they did not. Accordingly, the
Court finds that Plaintiff will not be prejudiced by the setting aside of the defaults.
C. Culpable Conduct
The standard for “culpable conduct” in the Third Circuit requires evidence of
“willfulness” or “bad faith” on the part of the non-responding defendant. Hritz v. Woma Corp.,
732 F.2d 1178, 1182 (3d Cir. 1984). “[T]he words ‘willfulness’ and “bad faith’ are not
talismanic incantations which alone resolve the issue” but rather “are simply terms to guide the
district court by expressing [the Third Circuit’s] preference for avoiding default judgments where
the circumstances do not justify such a result.” Id. at 1182-183. “Appropriate application of the
culpable conduct standard requires that as a threshold matter more than mere negligence be
demonstrated. Certainly ‘willfulness’ and ‘bad faith’ include acts intentionally designed to avoid
compliance with court notices. The case law, however, is bereft of precedent limiting the
availability of default judgment to this narrow band of ‘knowing’ disregard for court-mandated
procedures. Reckless disregard for repeated communications from plaintiffs and the court,
combined with the failure to investigate the source of a serious injury, can satisfy the culpable
conduct standard.” Id. at 1183.
The delay in Defendants Keyport, Keyport Police Department, and Casaletto’s
appearance in this action was caused by an approximately sixteen-day delay by Defendants’
insurance carrier in assigning this matter to counsel and a subsequent five-day delay by counsel
in reviewing the case file due to a family vacation abroad. Counsel for Defendants Keyport,
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Keyport Police Department, and Casaletto received the Complaint on January 20, just five days
before Defendants’ answer was due and just one week before the entry of default.
The delay in Defendant Kerm’s appearance in this action was caused by a twenty-three
day delay by Defendants’ insurance carrier in assigning this case to counsel. Defendant Kerm’s
counsel received the Complaint on January 27, 2017, two days after Defendant’s answer was due
and later the same day that default was entered. In short, counsel for Defendant Kerm was not
properly assigned Defendant Kerm’s representation until after default had been entered.
Plaintiffs’ arguments concerning culpable conduct are coextensive with their arguments
for the existence of prejudice, and concern alleged injuries to Plaintiffs from Defendants’ alleged
prior conduct, not the brief, three-week delays in responding to the Plaintiffs’ civil Complaint.
Administrative delay by Defendants’ insurance carrier and a five-day delay by Defendant
Kerm’s counsel due to a family vacation may indicate a certain lack of diligence, particularly on
the part of the insurance carrier, in timely responding to Plaintiffs’ pro se pleadings, but clearly
do not rise above the threshold of mere negligence necessary to show willfulness or bad faith on
the part of Defendants here. Hritz, 732 F.2d at 1183. Nothing suggests that the delays in this
matter were intentional, reckless, or even knowing. To the contrary, counsel for all cross-moving
Defendants promptly moved to vacate default upon discovery of the delay, and, in the case of
Defendant Kerm’s counsel, attempted to remedy the default within days of notification. The
Court also notes that some reasonable time after the notification of counsel was clearly necessary
in which to prepare an answer or other responsive pleading to Plaintiffs’ thirty-eight-page, pro se
Complaint, alleging seventeen distinct causes of action. The Court therefore finds that
Defendants’ conduct was not sufficiently culpable to prevent the setting aside of default in this
matter.
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D. Motion for Default Judgment
Because vacating the defaults entered against Defendants is appropriate in this case,
Plaintiff’s motion for default judgment is denied for the same reasons stated above. In briefing,
Plaintiffs also request that, should their motion for default judgment be denied, this Court
dismiss with prejudice the criminal charges against Plaintiffs and expunge their criminal
convictions in order to allow them to pursue their civil claims here as pro se litigants. This Court
lacks the authority, in the present action, to grant such relief, and no relief is warranted given the
circumstances described above.
IV. CONCLUSION
For the foregoing reasons, Defendants’ cross motions to vacate default are granted, and
Plaintiff’s motion for default judgment is denied.
Dated: _____8/16/2017____
/s/ Freda L. Wolfson
.
The Honorable Freda L. Wolfson
United States District Judge
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