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Foster v. E Partner Net

United States District Court, D. New Jersey

April 11, 2017

KEVIN FOSTER, Plaintiff,
v.
E PARTNER NET, Defendant.

          OPINION

          KEVIN MCNULTY, U.S.D.J.

         This matter comes before the Court on the unopposed motion of the plaintiff, Kevin Foster, for a default judgment. For the reasons stated herein, the motion for a default judgment will be denied, and the Complaint will be dismissed without prejudice.

         DISCUSSION

         "[T]he entry of a default judgment is left primarily to the discretion of the district court." Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951)). Because the entry of a default judgment prevents the resolution of claims on the merits, "this court does not favor entry of defaults and default judgments." United States v. $55, 518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984). Thus, before entering default judgment, the Court must determine whether the "unchallenged facts constitute a legitimate cause of action" so that default judgment would be permissible. DirecTV, Inc. v. Asher, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006) (citing Wright, Miller, Kane, 10A Fed. Prac. & P. Civil 3d § 2688, at 58-59, 63).

         "[D]efendants are deemed to have admitted the factual allegations of the Complaint by virtue of their default, except those factual allegations related to the amount of damages." Doe v. Simone, 2013 WL 3772532, at *2 (D.N.J. July 17, 2013). While "courts must accept the plaintiffs well-pleaded factual allegations as true, " they "need not accept the plaintiffs factual allegations regarding damages as true." Id. (citing Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 536 (D.N.J. 2008)). Moreover, if a court finds evidentiary support to be lacking, it may order or permit a plaintiff seeking default judgment to provide additional evidence in support of the allegations. Doe, 2013 WL 3772532, at *2. In doing so, however, I must be sensitive to the issue of whether the Complaint, as filed and served, placed the defendant on notice of a viable cause of action.

         A. Prerequisites for Entry of Default Judgment

         Before a court may enter default judgment against a defendant, the plaintiff must have properly served the summons and complaint, and the defendant must have failed to file an answer or otherwise respond to the complaint within 21-day time period provided by the Federal Rules. See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 18-19 (3d Cir. 1985).

         Plaintiff has submitted proof of service upon defendant at its business premises on November 17, 2016. (ECF no. 3) The affidavit relates that this service upon defendant's attorney, an authorized legal agent, was sufficient under Utah state law. See Fed.R.Civ.P. 4(h); Utah R. Civ. P. 4(d)(1)(E). Defendant had 21 days to file an answer or otherwise respond. Fed.R.Civ.P. 12(a). No answer or other responsive pleading appears on the court's docket, and the affidavit in support of the plaintiffs motion confirms that there has been no response. (ECF no. 6-1 ¶ 5)

         The clerk entered default on February 8, 2017. Plaintiff served and filed his motion for default judgment on February 10, 2017. (ECF no. 6) There has been no response to the motion.

         Accordingly, I am satisfied that the prerequisites to filing a motion for default judgment are met. See Gold Kist, 756 F.2d at 18-19.

         B. Analysis

         After the prerequisites have been satisfied, a court must evaluate the following three factors: "(1) whether the party subject to default has a meritorious defense, (2) the prejudice suffered by the party seeking default, and (3) the culpability of the party subject to default." Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)).

         As to the first factor, my I consider whether the claims are legally flawed or that defendant could mount a meritorious defense. See Doe, 2013 WL 3772532, at *5. For this purpose, I accept the allegations in the Complaint as true. Comdynel, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990). I nevertheless must conclude that the allegations are not sufficient to state a cause of action.

         Count 1, the sole count of the Complaint, relates that the defendant, E Partner Net, is a "debt collector" within the meaning of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692(a)(6). It alleges that "on information and belief, on a date better known to Defendant, " the defendant attempted to collect a debt allegedly owed by the plaintiff. This allegedly was a household "debt" within the meaning of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692a(5). The defendant, on some unspecified date, reported the debt to a credit reporting agency, and it appeared on the plaintiffs credit report. On June 28, 2016, the plaintiff notified the defendant ...


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