The opinion of the court was delivered by: Walls, District Judge
This matter is before the Court on the motion of defendant Frank D'Agosta to vacate the default judgment entered against him because of allegedly improper service of process and excusable neglect. Pursuant to Fed. R. Civ .P. 78, the Court decides this motion without oral argument. Defendant's motion to vacate the default judgment is denied.
On August 16, 1995, plaintiff Brent James, a truck driver, delivered furniture to defendant D'Agosta's residence in Jersey City. Before plaintiff unloaded the furniture, he requested payment for both the furniture and the delivery charge, and Ms. Marvinny, defendant D'Agosta's girlfriend, gave plaintiff two checks representing these payments. After plaintiff unloaded the furniture, Ms. Marvinny was not satisfied with the condition of the furniture and demanded a refund. Plaintiff returned the check for the furniture to Ms. Marvinny and reloaded the furniture. Ms. Marvinny insisted that plaintiff also return the check for the delivery fee. Plaintiff refused to do so because it represented payment for the delivery service he rendered and it was independent of the cost of the furniture. Mr. James also explained that under the contract for the purchase of the furniture, the delivery fee was non-refundable.
Ms. Marvinny then telephoned defendant D'Agosta who arrived shortly thereafter at the residence. Upon his arrival, D'Agosta identified himself as a Jersey City police officer. Mr. James contacted his employer who instructed him not to return the check for the delivery fee and explained to Mr. D'Agosta that the delivery fee was non-refundable. Mr. D'Agosta radioed for a patrol car and then hand-cuffed, arrested, and detained plaintiff on the front lawn of the residence. When the patrol car arrived, Mr. D'Agosta detained Mr. James in the car for thirty-five minutes until plaintiff returned the check for the delivery charge. Mr. James was discharged from his employment within two weeks of this incident, and as a result, lost his home and automobile. On May 7, 1997, plaintiff filed a complaint in this Court against D'Agosta, Brian Anlin (Chief of Jersey City Police Department ("J.C.P.D."), and the City of Jersey City pursuant to 42 U.S.C. §§ 1983, 1983, and 1988 for violations of his Fourth, Fifth, and Fourteenth Amendment rights, interference with his civil rights, violations of the New Jersey Law Against Discrimination ("NJLAD"), unlawful arrest, false imprisonment, battery, and failure to properly hire and train. Defendants City of Jersey City and Brian Anlin answered the complaint on June 23, 1997.
Although D'Agosta's attorney requested an extension of time to answer and was granted the extension through a July 15, 1997 Stipulation, D'Agosta failed to answer the complaint. On April 13, 1998, default was entered against D'Agosta, and on June 25, 1998, this Court granted plaintiff's motion for a default judgment of $17,500 against him.
Defendant D'Agosta now moves to vacate the default judgment against him pursuant to Fed. R. Civ. P. 60(b) because of allegedly improper service of process and excusable neglect. D'Agosta claims that he was never served a copy of the complaint and only learned about the action through the law offices of the City of Jersey City. When he learned about the action, he retained the services of an attorney, Elise DiNardo, who entered into a July 15, 1997 Stipulation with plaintiff's counsel extending the time to answer until July 30, 1997, but never filed an answer. According to D'Agosta, he inquired into the status of the case sometime in April or May, 1998, and DiNardo indicated that she was withdrawing from the case because the City of Jersey City refused to pay her retainer. D'Agosta claims that he never received any notice of the default entered against him or a copy of the default judgment. D'Agosta asserts that Ms. DiNardo refused to return D'Agosta's file to him unless he signed a release holding her harmless.
A. Standard for Vacating a Default Judgment
Fed. R. Civ. P. 60(b) provides:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
The decision to set aside a default judgment is left "primarily to the discretion of the district court." United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984)(citing Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951)). The Third Circuit has mandated that a district court "consider the following factors in exercising its discretion in granting or denying a motion to set aside a default under Rule 55(c) or a default judgment under Rule 60(b)(1): (1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; (3) whether the default was the result of the defendant's culpable conduct." $55,518.05 in U.S. Currency, 728 F.2d at 195 (citing Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 122 (3d Cir. 1983); Feliciano v. Reliant Tooling Company, Ltd., 691 F.2d 653, 656 (3d Cir. 1982); Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982)). "[D]oubtful cases [are] to be resolved in favor of the party moving to set aside the default judgment `so that cases may be decided on their merits.'" $55,518.05 in U.S. Currency, 728 F.2d at 195 (quoting Tozer, 189 F.2d at 245). As the Third Circuit has stated, "there would be no point in setting aside the default judgment" if the defendant could not demonstrate the possibility of his success on the merits. $55,518.05 in U.S. Currency, 728 F.2d at 195. In addition, a party who seeks to set aside a judgment under Rule 60(b)(6) must demonstrate ...