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HALL v. COUNTY OF PASSAIC

August 23, 2005.

RONALD HALL; CHARLES MEYERS; MOLLY MEYERS; ANDREA KASHISHIAN; PETER FAZIO; and CAROLANN FAZIO, individually and as parent and natural guardian for PAULE FAZIO, DANIEL FAZIO, and THOMAS FAZIO, Plaintiffs,
v.
COUNTY OF PASSAIC; PASSAIC COUNTY SHERIFF'S DEPARTMENT; EDWIN J. ENGLEHARDT, individually and in his official capacity; RONALD S. FAVA, individually and in his official capacity; JOHN BONAZZI, individually and in his official capacity; WILLIAM MULLANAPHY, individually and in his official capacity; KEVIN PISCITELLI, individually and in his official capacity; SCOTT OJEDA, individually and in his official capacity; and LOUIS CAMACHO, individually and in his official capacity, Defendants.



The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION

This matter comes before the Court on the motion of Defendant Ronald S. Fava ("Defendant Fava") to set aside an entry of default, pursuant to Rule 55(c) of the Federal Rules of Civil Procedure (Docket No. 27), and on the motion of Plaintiffs Ronald Hall, Charles Meyers, Molly Meyers, Andrea Kashishian, Peter Fazio, Carolann Fazio, Paule Fazio, Daniel Fazio, and Thomas Fazio ("Plaintiffs") seeking: (1) a judgment of default against Defendant Fava; (2) an extension of time to serve Defendant Louis Camacho ("Defendant Camacho"), pursuant to Rule 4(m) of the Federal Rules of Civil Procedure; and (3) an order compelling Defendant County of Passaic ("Passaic County") to produce settlement documents for related lawsuits (Docket No. 32). For the reasons set forth below, Defendant Fava's motion to set aside the entry of default will be granted, and Plaintiffs' motion will be denied as to their requests for a judgment of default and an extension of time to serve Defendant Camacho. The Court will reserve decision on Plaintiffs' motion to compel disclosure of settlement information in possibly related lawsuits, and the parties are hereby ordered to submit letters to the Court, within fourteen days, detailing the status of this discovery request.

PROCEDURAL HISTORY

  On May 9, 2003, Plaintiffs filed a complaint seeking damages for the deprivation of constitutional rights under 42 U.S.C. § 1983, along with other state and federal claims. As of August 11, 2004, most defendants had been served and had filed answers, except: (1) Defendant Camacho had not been served with the complaint; and (2) Defendant Fava, who sent his waiver of service on September 16, 2003, which was returned executed on March 29, 2004, never filed an answer.

  On April 6, 2004, after Defendant Fava's failure to file an answer in response to Plaintiffs' complaint, Plaintiffs requested an entry of default, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. On April 7, 2004, the Clerk of the Court entered Defendant Fava's default.

  On January 3, 2005, Defendant Fava filed the current motion to set aside the default entry, pursuant to FED. R. CIV. P. 55(c). Plaintiffs filed a brief and an affidavit in opposition to Defendant Fava's motion. Plaintiffs also filed, on January 21, 2005, a separate motion seeking: (1) an entry of a default judgment against Defendant Fava; (2) an extension of time to serve Defendant Camacho; and (3) an order compelling Passaic County's disclosure of settlement information in relevant lawsuits.*fn1

  FACTS

  A. Defendant Fava

  Defendant Fava maintains that, in September 2003, presumably after he signed his waiver of service, he contacted his attorney, Brian Neary, and faxed a portion of the complaint to Mr. Neary's office. (Affidavit of Brian J. Neary ("Neary Aff."), at ¶ 1; Mem. of Law in Supp. of Def. Ronald S. Fava's Mot. to Set Aside Entry of Default ("Def.'s Br."), at 1.) During the next few weeks, Mr. Neary was confused as to whether he had been formally retained by Passaic County to represent Mr. Fava in the instant matter. (Neary Aff. ¶ 3; Def.'s Br. at 1.) Apparently, Defendant Fava believed Mr. Neary had been retained, but Mr. Neary, who has represented Defendant Fava on behalf of Passaic County on at least one prior occasion, expected that additional paperwork was required (and forthcoming) in order for Passaic County to retain him formally on Defendant Fava's behalf. (Neary Aff. ¶ 3; Def.'s Br. at 4.) Due to this confusion and resulting inaction, Mr. Neary's staff inadvertently filed the complaint in a case file regarding a previous matter in which Mr. Neary had represented Defendant Fava on behalf of Passaic County. (Neary Aff. ¶ 3; Def.'s Br. at 1.) That previous matter was settled in January 2004, and the complaint in this action remained misplaced in that closed case file. (Neary Aff. ¶¶ 1, 3; Def.'s Br. at 1.) From the fall of 2003 through July 2004, Mr. Neary was involved in preparation for and trial of a complex fraud action before this Court. (Neary Aff. ¶ 4; Def.'s Br. at 1.) After the conclusion of the trial, Mr. Neary claims that he attempted to appear on behalf of Mr. Fava to rectify the default entry, and spent two months trying to contact Plaintiffs' counsel. (Neary Aff. ¶¶ 7-9; Def.'s Br. at 1.) When Mr. Neary spoke to Plaintiffs' counsel on September 27, 2004, he claims that Plaintiffs' counsel gave him the impression that he would consent to set aside the default entry, and Mr. Neary immediately faxed a draft stipulation so stating. (Neary Aff. ¶ 9; Def.'s Br. at 1.) Plaintiffs' counsel responded in early October that he would not consent. (Neary Aff. ¶ 10; Def.'s Br. at 1.) Thus, Mr. Neary filed the instant motion to set aside the default entry on behalf of Defendant Fava.

  Plaintiffs contend that Mr. Neary contacted Plaintiffs' counsel on or about August 13, 2004, and then, "a couple of months later," sent a stipulation to set aside the default entry. (Certification of Michael A. Zimmerman in Opp'n to Def.'s Mot. ("Zimmerman Opp'n Cert."), at ¶ 11; Pls.' Br. in Opp'n to Def. Fava's Mot. to Vacate His Default and Extend His Time to Ans. ("Pls.' Opp'n"), at 6.) Plaintiffs agree that their counsel refused to consent to the stipulation. (Zimmerman Opp'n Cert. ¶ 11; Pls.' Opp'n at 6.)

  B. Defendant Camacho

  Plaintiffs seek an extension of time to serve Defendant Camacho with the complaint. Plaintiffs assert that Defendant Camacho avoided service either by deceiving Plaintiffs' counsel, or because Passaic County, who agreed to represent Defendant Camacho, did nothing on his behalf. (Pls.' Br. in Supp. of Mot. for J. of Default; Extension of Time to Serve Defendant Louis Camacho; and to Compel Production of Settlement Information ("Pls.' Br."), at 13.) Plaintiffs contend that, from May 2003 to September 2003, their counsel served notices of lawsuit and requests for waiver of service of summons on Defendant Camacho four times. (Pls.' Br. at 13.) Plaintiffs argue that, on each of these four occasions, Defendant Camacho admitted that he received those mailings, but never returned executed waivers. (Pls.' Br. at 13.) Plaintiffs maintain that Defendant Camacho told their counsel that he had forwarded the paperwork to the Deputy Warden, who then forwarded it to Passaic County Counsel. (Zimmerman Opp'n Cert. ¶ 5; Pls.' Br. at 13.) Plaintiffs assert that, when their counsel thereafter contacted Passaic County Counsel, the office stated that it would investigate the matter and respond. (Pls.' Br. at 13-14.) Plaintiffs contend that, when no response came, their counsel again contacted County Counsel "to no avail." (Pls.' Br. at 14.) During the next eight months, however, Plaintiffs claim that their counsel twice spoke with either Defendant Camacho or his wife, and each time Defendant Camacho agreed to sign the waiver of service, only to renege on his agreement, never returning a signed waiver. (Pls.' Br. at 14.) In their motion, now before this Court, Plaintiffs have requested an extension of time to serve Defendant Camacho, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

  LEGAL STANDARD

  A. Setting Aside an Entry of Default

  The Federal Rules of Civil Procedure provide that, "[f]or good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." FED. R. CIV. P. 55(c). A decision to set aside an entry of default or to vacate a default judgment is left to the sound discretion of the district court. See United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984). The Third Circuit Court of Appeals, however, does not favor entry of defaults or default judgments, but rather prefers that doubtful cases be resolved in favor of the party moving to set aside the default "so that cases may be decided on their merits." Id. (internal quotation marks and citations omitted). The factors to be considered in granting or denying a motion to set aside a default under Rule 55(c) are: "(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." Id. at 195.

  B. Extending Time for Service

  If a plaintiff has not obtained service upon a defendant within 120 days after filing the complaint, the plaintiff may file a motion requesting the court to extend time for service. See FED. R. CIV. P. 4(m). Rule 4(m) of the Federal Rules of Civil Procedure governs this practice, and states:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
FED. R. CIV. P. 4(m).

  When deciding whether an extension of time for service should be granted under Rule 4(m), the district court first must determine whether good cause exists for an extension. See Petrucelli v. Bohringer and Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995). The court's next step rests on the outcome of that initial determination: "If good cause is present, the district court must extend time for service and the inquiry is ended. If, however, good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for ...


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