Broadwater v. Fow et al
ORDER - re: Christopher Broadwater's motion for default jdgmt & costs of svc 16 - It is hereby ORDERED that: 1. Period w/in which Fow may respond to complaint extended to 2/27/13.; 2. Motion for default jdgmt 16 DENIED w/out prejudice.; 3.C lrk of Ct to refrain from entering default.; 4. Motion for costs of svc GRANTED - cnsl of record to meet & confer on resolution of costs incurred for svc - in absence of amicble resolution cnsl for pltf shall submit affidavit of costs for svc only. (SEe order for complete details.) Signed by Honorable Christopher C. Conner on 2/7/13. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTOPHER G. BROADWATER
CHRISTIAN D. FOW, et al.,
CIVIL ACTION NO. 1:12-CV-1937
AND NOW, this 7th day of February, 2013, upon consideration of plaintiff
Christopher Broadwater’s (“Broadwater”) motion for default judgment and costs of
service1 (Doc. 16) filed on February 4, 2013 against defendant Christian D. Fow
(“Fow”), which requests that the court enter default pursuant to Rule 55 of the
Federal Rules of Civil Procedure because Fow failed to respond to the complaint
within the time period prescribed by Rule 12(a)(1)(A)(i), and upon consideration of
the document filed in support thereof (see Doc. 17), and upon further consideration
of Fow’s response (Doc. 19), wherein he avers that he is currently engaged in a
union grievance concerning the Pennsylvania State Police’s decision to deny
representation of him in this matter and that he has recently retained counsel who
will immediately begin to comply with all filing deadlines, and it appearing that
entry of default judgment is disfavored because the judicial process encourages
Fow did not agree to waive formal service. (Doc. 16 ¶ 5; Doc. 19 ¶ 5). The
court must order a defendant to pay the expenses incurred in making service if the
defendant fails, absent good cause shown, to sign and return a waiver of formal
service. FED. R. CIV. P. 4(d)(2). Fow did not respond to Broadwater’s request for
costs of service (see Doc. 19) and therefore does not appear to oppose it. The court
shall order Fow to pay the costs incurred for formal service of process.
resolution of disputes on the merits, see Culver v. U.S. Dep’t of Labor, 248 Fed.
App’x 403, 408 (3d Cir. 2007), and that the court may decline to enter default when it
is “apparent that [the default] would be set aside on a motion by defendants,” 10A
CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE 2682 (3d ed.
1998), and that the court may grant a defendant additional time in which to plead or
otherwise defend an action, see Chocallo v. I.R.S. Dep’t of Treasury, 145 Fed. App’x
746, 747 (3d Cir. 2005) (quoting Orange Theatre Corp. v. Rayherstz Amusement
Corp., 139 F.2d 871, 872 (3d Cir. 1944) (“A District Court has ‘ample power, in its
discretion, to extend the time for serving a motion or answer.’”), and the court
concluding that Broadwater will suffer no material prejudice if the period within
which Fow may plead or otherwise defend is extended because the instant matter
remains in the preliminary stages of litigation, and the court further concluding that
Fow’s delay was not due to culpable conduct, see Chamberlain v. Giampapa, 210
F.3d 154, 164 (3d Cir. 2000) (stating that the court should evaluate prejudice to the
plaintiff, the existence of a litigable defense, and the culpability of defendant’s delay
when ruling on a motion for default judgment), it is hereby ORDERED that
Broadwater’s motion for default judgment and costs of service (Doc. 16) is DENIED
in part and GRANTED in part:
The period within which Fow may respond to the complaint is
EXTENDED until the close of business on February 27, 2013.
The motion for default judgment is DENIED without prejudice.
The Clerk of Court is instructed to refrain from entering default in the
The motion for costs of service is GRANTED. Counsel of record are
directed to meet and confer on the resolution of costs incurred for
service. In the absence of an amicable resolution, counsel for plaintiff
shall submit an affidavit of costs (for service only).
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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