COONEY et al v. DUNNER et al

Filing 27

MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT IS GRANTED. DEFAULT JUDGMENT IS ENTERED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 55(b) IN FAVOR OF THE PLAINTIFFS AND AGAINST DEFENDANTS STEVEN DUNNER AND ALLY FINANCIAL, INC.; ETC.. SIGNED BY HONORABLE GERALD J. PAPPERT ON 8/31/17. 8/31/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREW B. COONEY and DIANE A.
COONEY,
CIVIL ACTION
NO. 16-3707

Plaintiffs,
v.
STEVEN M. DUNNER, et al.,
Defendants.
PAPPERT, J.

August 31, 2017
MEMORANDUM
I.
A.

Andrew and Diane Cooney’s home at 143 South Baringer Street in Bucks
County’s Silverdale Borough sits on a lot created pursuant to a Major Subdivision Plan.
That Plan was revised and recorded with the Bucks County Recorder of Deeds on
August 14, 2006. (Am. Compl. ¶ 12.) Under the terms of the Plan, the Cooney’s
Property is 3.0744 acres spread across two parcels: “Lot 1” and “Parcel C.” (Id. ¶¶ 12,
14–15.) The Cooney’s home sits on Lot 1, while Parcel C is designated by the Plan to
remain as open space. (Id. ¶¶ 15(a)–(b).) Parcel C is effectively landlocked: it cannot be
accessed without crossing over either Lot 1 or a neighbor’s property. (Id. ¶ 18.) The
Major Subdivision Plan accordingly requires that Parcel C is “to remain with Lot 1.”
(Id. ¶ 17.) As a result, the two parcels that make up the Property are collectively
known by a single address and single tax parcel number. (Id. ¶ 16.)

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The Cooneys are the not first to own the Property since it was subdivided. On
September 15, 2006, Paul and Vicki Fox conveyed the entire Property by deed to Steven
Dunner and Daniel Kelly (the “Fox Deed”). (Id. ¶¶ 19, 22.) The Fox Deed was recorded
on September 26. (Id. ¶ 21.) The Property was conveyed again on November 17, 2006,
when Dunner and Kelly deeded it to David and Cynthia Kern (the “Dunner Deed”). (Id.
¶ 23.) The Kerns recorded the Dunner Deed on March 30, 2007. (Id. ¶ 25.)
The description of the Property contained in the Dunner Deed spawned this
litigation. The metes and bounds description only describes Lot 1—that is, it omits any
description of Parcel C. (Id. ¶ 26.) That is the case despite the Major Subdivision
Plan’s requirement that Parcel C is “to remain with Lot 1.” See (id. ¶ 17). Despite its
incomplete metes and bounds description, the Dunner Deed includes the correct
address and tax parcel number by which the whole Property is identified. (Id. ¶ 26.)
The Kerns sold the Property to Andrew and Diane Cooney on June 14, 2013 (the
“Kern Deed”). (Id. ¶ 23.) The Kern Deed was recorded on June 21, 2013. (Id. ¶ 41.)
The Kerns and Cooneys believed the sale was for both Lot 1 and Parcel C. (Id. ¶ 38.)
The Cooneys received a report from the Multiple Listings Service, which described the
Property as 3.07 acres—the combined area of Lot 1 and Parcel C, see (id. ¶¶ 30–32), and
the Kerns represented to the Cooneys that the Property included both Lot 1 and Parcel
C. (Id. ¶ 33.) Nevertheless, the Kern Deed repeated the same metes and bounds
description as the Dunner deed, pertaining only to Lot 1. (Id. ¶ 42.)
On June 14, 2013, the Cooneys executed a deed conveying title in the property to
themselves in order to add their middle initials (“the “Deed of Correction”). (Id. ¶¶ 43,
46.) They recorded the Deed of Correction June 21. (Id. ¶ 45.) The Deed of Correction

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also repeated the incomplete metes and bounds description contained in the previous
two deeds. (Id. 47.) Like the Kern and Dunner Deeds before it, however, the Deed of
Correction identifies the Property by its correct tax parcel number and street address.
(Id.)
Because the Dunner Deed, the Kern Deed and the Deed of Correction do not
include a metes and bounds description of both parcels that make up the Property,
Parcel C may appear to be recorded in Dunner’s name. As a result, the Cooneys
contend that title to the property is unmarketable. (Id. ¶¶ 58–59.) Moreover, several
third parties could claim to hold liens against Parcel C based on Dunner’s liabilities.
Three such liabilities are relevant to this case: First, on September 11, 2009, the IRS
filed a notice of federal tax lien against Dunner for $239,932.18 in unpaid taxes. (Id.
¶ 52.) Next, on April 1, 2014, Bucks County obtained a $100,000 judgment in the
Bucks County Court of Common Pleas against Dunner for unpaid taxes. (Id. ¶ 51.)
Finally, on October 17, 2012, Ally Financial Inc. won a $14,957.65 judgment against
Dunner also in the Bucks County Court of Common Pleas. (Id. ¶ 50.)
B.
On May 5, 2016, the Cooneys sued in Bucks County to quiet title to the Property
and reform the Dunner Deed, the Kern Deed and the Deed of Correction to include a
metes and bounds description of both Lot 1 and Parcel C. (ECF No. 1 at 10–20.) The
Cooneys named Dunner, Kelly, the Kerns, Ally Financial, Inc., Bucks County and the
IRS as defendants. See (id.). The United States removed the case on July 7, 2016
pursuant to 28 U.S.C. §§ 1442, 1444 and 2410. (ECF No. 1.) It then answered the
Complaint. (ECF No. 3.) Bucks County and the Kerns also timely answered the

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removed Complaint. (ECF Nos. 8 & 9.) Dunner, Kelly, and Ally failed to file answers,
and the Cooneys requested entry of default against each of them on July 27, 2016 (ECF
No. 6.) The Clerk of Court entered default the next day.
On February 1, 2017, the Cooneys settled their claims against the Kerns, Bucks
County and the United States. See (Settlement Agmt., at 2, ECF No. 21-5). Under the
terms of the settlement, the Cooneys and the Kerns agreed to pay between them
$15,000 to the United States and Bucks County; in exchange, the County and the
United States agreed to release their liens on Parcel C. (Id. at 5, ¶ 2.) The Settlement
Agreement also contains a “mutual limited release” provision, in which the Cooneys,
the Kerns, the County and the United States agree to release one another from all
claims and debts “presently known or unknown, matured or unmatured, arising now or
in the future” they may have against each other related to any liens and judgments
against Parcel C. (Id. at 5–6, ¶ 4.) The Kerns, Bucks County and the United States
also stipulated to reformation of the Kern Deed and the Deed of Correction. See
(Stipulation, ECF Nos. 18 & 20.)
As contemplated by the Settlement Agreement, the Cooneys now move for
default judgment against Dunner and Ally. In so doing, they seek to quiet title to
Parcel C and reform the Dunner Deed, the Kern Deed and the Deed of Correction. See
(ECF No. 21). For the following reasons, the motion is granted.

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III.
Rule 55(b)(2) authorizes a court to enter a default judgment against a properly
served defendant who fails to file a timely responsive pleading.1 See Anchorage Assocs.
v. V.I. Bd. of Tax Review, 922 F.2d 168, 177 n.9 (3d Cir. 1990). Three factors guide
whether default judgment should be granted: (1) prejudice to the plaintiff if default
judgment is denied; (2) whether the defendants appear to have a litigable defense; and
(3) whether the defendants’ delay is due to culpable conduct. Chamberlain v.
Giampapa, 210 F.3d 154, 164 (3d Cir. 2000) (citing United States v. $55,518.05 in U.S.
Currency, 728 F.2d 192, 195 (3d Cir. 1984)).
The Chamberlain factors support entry of default judgment. First, denying the
motion will prejudice the Cooneys. “Considerable delays,” especially those that might
“stretch on indefinitely,” are sufficient to show prejudice to the plaintiff. Grove v. Rizzi
1857 S.P.A., No. 04-2053, 2013 WL 943283, at *2 (E.D. Pa. Mar. 12, 2013); see also
State Farm Fire & Cas. Co. v. Hunt, No. 14-06673, 2015 WL 1974772, at *4 (E.D. Pa.
May 4, 2015) (holding that plaintiff “is prejudiced by [defendants’] ignoring this
litigation, protracting the dispute between the parties and effectively foreclosing
[plaintiff] from relief for the foreseeable future”); DirecTV, Inc. v. Asher, No. 03-1969,

The Cooneys personally served Dunner in Pennsylvania, see Bucks Sheriff’s Return, Cooney
v. Dunner, (No. 2016-02721, Pa. Ct. Com. Pl. 2016), and the Court may exercise personal jurisdiction
over Dunner, who was an inmate at the Quehanna Boot Camp in Pennsylvania at the time this suit
was filed, see id.
The Cooneys also properly served Ally. (ECF No. 6-3, at 45–46); see also FED. R. CIV. P.
4(h)(1)(B). The Court may also exercise specific personal jurisdiction over Ally in this action
consistent with traditional notions of fair play and substantial justice. “Courts have held that a
party who chooses to initiate suit as a plaintiff in a forum state thereby waives any objection to
personal jurisdiction in a suit lodged against it in the same state, at least in cases where the two
suits involve the same subject matter.” H.A.S. Protection, Inc. v. Senju Metal Indus. Co., Ltd., No.
03-1215, 2003 WL 23419852 (citing Gen. Contracting & Trading Co., L.L.C. v. Interpole, Inc., 940
F.2d 20, 24 (1st Cir. 1990)). Ally sued Dunner in the Pennsylvania courts; its status as a judgment
creditor is, among other things, at the heart of this case.
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2006 WL 680533, *2 (granting default judgment where defendant “has not responded in
any fashion,” “has not asserted any meritorious defense,” and has not “offered any
excusable reason for his default”). The Defendants have failed to answer or otherwise
appear in this case, leaving the Cooneys with no recourse other than to file for default
judgment. See, e.g., Moody Nat’l FFI Meadowlands Mt, LLC v. Gager, No. 12-2124, 2013
WL 622128, at *10 (D.N.J. Jan 24, 2013).
It does not appear that the Defendants have a litigable defense. By failing to
respond to the Complaint, the defaulted defendants have not offered any defense;
courts in this district have considered such a failure to suggest a lack of a litigable
defense. See, e.g., Joe Hand Promotions, Inc. v. Yakubets, 3 F. Supp. 3d 261 (E.D. Pa.
2011). Given that the Dunner Deed, the Kern Deed and the Deed of Correction sought
to transfer Lot 1 and Parcel C together as required by the Major Subidivison Plan, the
defaulting Defendants do not appear to have a litigable defense to the Cooney’s claims.
Finally, the defaulting Defendants’ failure to “engage[ ] in the litigation process”
constitutes “culpable conduct with respect to the entry of a default judgment—indeed,
for the Court to conclude otherwise would be to reward the recalcitrant or the
oppositional and uncooperative.” E. Elec. Corp. of N.J. v. Shoemaker Constr. Co., 657 F.
Supp. 2d 545, 554 (E.D. Pa. 2009). While Dunner’s incarceration does not suggest that
his culpable conduct led to the entry of default, the first two Chamberlain factors weigh
in favor of entering default judgment. Cf. also Jimenez v. Rosenbaum-Cunningham,
Inc., No 07-1066, 2010 WL 1303449, at *6 n.7 (E.D. Pa. Mar. 31, 2010) (“The fact that [a
defendant] is incarcerated does not render her incompetent or excuse her from
participating in these proceedings.”). The Defendants have been served with the

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Complaint and are therefore put on notice as to their obligation to file a responsive
pleading. The “equities of the situation and the need for the efficacious resolution of
controversies” thus weigh in favor of entering default judgment. Summit Tr. Co., 2013
WL 3967602, at *4 (quoting Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984)).
The Cooney’s Motion for Default Judgment is granted.
An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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