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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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