United States District Court, D. New Jersey
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
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).
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.
Prerequisites for Entry of Default Judgment
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
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)
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.
I am satisfied that the prerequisites to filing a motion for
default judgment are met. See Gold Kist, 756 F.2d at
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)).
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.
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 ...