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Smalls v. Buckalew Frizzell & Crevina Llp

United States District Court, D. New Jersey

June 25, 2014

PATRICIA SMALLS, Plaintiff,
v.
BUCKALEW FRIZZELL & CREVINA LLP et al., Defendants.

OPINION & ORDER

STANLEY R. CHESLER, District Judge.

This matter comes before the Court on five motions: 1) the motion to vacate the entry of default and dismiss the Complaint by Defendant American Movers, Inc. ("American"); 2) the motion to vacate the entry of default by Defendant American Express Bank ("Amex"); 3) the motion to dismiss the Complaint by Amex; 4) the motion to dismiss the Complaint by Defendant Lazaro Carvajal ("Carvajal"); and 5) the motion to vacate the entry of default and dismiss the Complaint by Defendant Daniel Ortiz ("Ortiz"). For the reasons stated below, the Court will grant all of the motions.

This case arises from the alleged participation of Defendants in the eviction of Plaintiff from her cooperative apartment. On July 30, 2013, Plaintiff filed a Complaint which identifies these moving Defendants, as well as other parties, as defendants. After naming the defendants, the Complaint begins with this paragraph:

CAUSE OF ACTION

18 USC Section 241, Conspiracy against Rights; 18 USC Section 242, Deprivation of Rights; U.S.C. Section 3601-Fair Housing Act and Criminal interference with Right to Fair Housing, 15 USC 689 Unlawful acts and omission; 18 USC Section 876, mailing threatening communications; Fraud; Harassment; Extortion; 18 USC Section 371, Wrongful Use of Civil Proceeding, Conspiracy to Commit Burglary; Burglary; Invasion of Privacy; Trespass; Trespasser; Breach of Fiduciary; Breach of duty of loyalty; Lack of Good Faith; Breach of Duty of Care; Unequal Treatment of Shareholders; Intentional Infliction of Emotional Distress; Defamation; Conflict of Interest; Fourth and Fourteenth Amendment Constitutional Rights Violations; Civil Rights Violations and Race and Sex Discrimination.

The Complaint then contains a narrative of factual allegations. The Complaint does not further specify what claims are asserted against which defendants based on which allegations.

I. The motions by Defendant American Movers, Inc.

American first moves to vacate the clerk's entry of default entered on November 6, 2013, contending that it was never properly served. Plaintiff's opposition brief does not address this issue.

Federal Rule of Civil Procedure 55(c) authorizes the Court to set aside an entry of default for good cause. Clearly, failure to effect proper service constitutes good cause. Federal Rule of Civil Procedure 4(h)(1) states that a corporation must be served:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant...

American contends that the affidavit of service is defective because the server left blank the line giving the name of the person who accepted service. Because Plaintiff did not oppose the motion to vacate the entry of default, this Court construes this as conceding that service was not proper. The motion to vacate the clerk's entry of default against American will be granted, and the entry of default will be vacated.

American also moves to dismiss the Complaint for failure to state a claim, arguing that the Complaint fails to adequately state any claim for relief. The Complaint alleges that the building's property management company allowed American to enter Plaintiff's apartment, remove her personal property, and place the property in its storage facility. The Complaint characterizes these acts as burglary, but burglary is a criminal matter in New Jersey and does not give rise to a civil cause of action, except for trespass. According to the Restatement (Second) of Torts § 158, "One is subject to liability to another for trespass... if he intentionally... enters land in the possession of the other." The problem here is that the Complaint does not plead facts which support the inference that Plaintiff was in possession of the apartment at the time of the removal of her property. To the contrary, the Complaint states that New Jersey Superior Court Judge Velazquez decided that Riviera Towers Corporation "had the right to break into Plaintiff's co-op apartment... because the Plaintiff co-op apartment belongs [to] RTC." (Compl. ¶ 34(b).) The Compliant thus pleads no facts to support any inference that ...


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