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Bell v. Township of Quinton

United States District Court, D. New Jersey

January 15, 2015

GARY L. BELL, SR., Plaintiff,

Richard Etienne Incremona, Esq., Helmer Comley & Kasselman, Freehold, New Jersey, Counsel for Plaintiff.

Allan E. Richardson, Esq., Linda A. Galella, Esq., Richardson & Galella, Woodbury, New Jersey, Counsel for Defendant.


NOEL L. HILLMAN, District Judge.

Presently before the Court are the motion [Doc. No. 13] of Defendant, Township of Quinton, seeking an extension of time to file an answer pursuant to Federal Rule of Civil Procedure 6(b), and the cross-motion [Doc. No. 17] of Plaintiff, Gary L. Bell, Sr., seeking entry of default judgment against Defendant pursuant to Federal Rule of Civil Procedure 55(b); and it appearing that:

1. Pursuant to Federal Rule of Civil Procedure 81(c), after an action is removed to federal court, a defendant who did not answer before removal must file an answer or otherwise defend within the longest of these periods: (A) twenty-one days after receiving - through service or otherwise - a copy of the initial pleading, (B) twenty-one days after being served with the summons for an initial pleading on file at the time of service, or (C) seven days after the notice of removal is filed.

2. Plaintiff represents that counsel for the Township of Quinton, Elizabeth M. Garcia, Esq., was served on February 25, 2014, and Township of Quinton Mayor, Joseph Donelson, was served on March 10, 2014. Defendant filed a Notice of Removal on March 20, 2014. Despite being served with the complaint, Defendant has not yet filed an answer in this matter.

3. Plaintiff filed a motion to remand on April 17, 2014. Defendant filed opposition to the motion to remand on April 21, 2014. The Court issued an Order to Show Cause in connection with Plaintiff's motion to remand, which Plaintiff responded to on November 21, 2014, and Defendant responded to on November 26, 2014.

4. The Court entered an Opinion and Order on December 17, 2014 denying Plaintiff's motion for remand. On December 23, 2014, less than one week later, Defendant filed the motion to extend time to answer presently before the Court. Counsel for Defendant represents that a request was made to Plaintiff's counsel on December 21, 2014 seeking consent to extend Defendant's time to answer, but Plaintiff's counsel declined to consent at that time. (Decl. of Linda A. Galella, Esq. ¶ 3.)

5. The Court also notes defense counsel's assertion that counsel did not have sufficient information to file an answer until he received the disciplinary file in this matter on April 11, 2014. (Decl. of Allan E. Richardson, Esq. ¶ 3.) Counsel further represents that he had previously attempted to obtain Plaintiff's consent to extend time to answer by letter dated May 27, 2014, but Plaintiff's counsel refused to sign the consent order. (Id. ¶ 5.) Defendant also asserts that it did not at that time request from the Court an extension of time to answer because it was unclear that the Court would have jurisdiction to address the request while the motion for remand was pending. (Id. ¶ 6.)

5. Plaintiff filed on December 24, 2014 a request for entry of default.[1] In the motion, Plaintiff contends that "[w]illful disregard of the procedures of this federal Court justifies entry of a default judgment against defendant." (Req. for Entry of Default by the Clerk's Office Pursuant to Fed.R.Civ.P. 55(a) ¶ 17.) (Id.) Further, Plaintiff argues that Defendant has had a reasonable chance to be heard, and its failure to file an answer "despite ample time and opportunity to do so" warrants entry of default judgment. (Id.)

6. Although the Clerk of the Court did not enter default, on December 31, 2014 Plaintiff filed the motion for default judgment presently before the Court.

7. Pursuant to Rule 55, obtaining a default judgment is a two-step process. First, when a defendant has failed to plead or otherwise respond, a plaintiff may request the entry of default by the Clerk of the Court. See Fed.R.Civ.P. 55(a). Second, after the Clerk has entered the party's default, a plaintiff may then obtain a judgment by default by either: (1) asking the Clerk to enter judgment, if the judgment is a sum certain, or (2) by applying to the Court. See Fed.R.Civ.P. 55(b).

8. "It is the accepted practice in this Circuit and in the Federal Court System generally that a party must request and receive an entry of default from the Clerk prior to moving for default judgment before the Court." Graise v. Marie, No. 12-05232, 2013 WL 1155281, at *2 (D.N.J. Mar. 20, 2013).

9. Here, although Plaintiff requested the Clerk's entry of default, Plaintiff did not obtain a Clerk's entry of default prior to filing the present motion for default judgment, ...

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