United States District Court, D. New Jersey
B. THOMPSON LAW OFFICE OF RONALD B. THOMPSON On behalf of
D. LONSTEIN LONSTEIN LAW OFFICE, P.C. On behalf of Defendant
L. HILLMAN, U.S.D.J.
case concerns Defendant's alleged violation of the Cable
Communications Policy Act of 1984, 47 U.S.C. §§ 521
to 573. Presently before the Court is Defendant's motion
to vacate the default judgment entered against him. For the
reasons expressed below, Defendant's motion will be
granted in part.
filed a complaint against Defendant on September 14, 2015,
alleging Defendant displayed satellite programming at his
Atlantic City bar without a commercial account in violation
of the Cable Communications Policy Act of 1984. Defendant was
served the complaint, but failed to file an answer or
November 20, 2015, Plaintiff filed a Status and Notice of
Intention to Move for Default. On December 9, 2015, Plaintiff
moved for entry of default. The clerk entered default on
January 13, 2016. On February 29, 2016, Plaintiff filed a
Status and Notice of Intention to File Default Motion. On
March 11, 2016, Plaintiff moved for default
judgment. On November 9, 2016, this Court granted
Plaintiff's motion for default judgment. Defendant filed
a motion to vacate the default judgment on February 27, 2017.
Rule of Civil Procedure 55(c) provides: “The court may
. . . set aside a final default judgment under Rule
60(b).” Fed.R.Civ.P. 55(c). Federal Rule of Civil
Procedure 60(b) provides: “[T]he court may relieve a
party . . . from a final judgment” for “mistake,
inadvertence, surprise, or excusable neglect” or for
“any other reason that justifies relief.”
Fed.R.Civ.P. 60(b)(1), (6).
decision to set aside . . . a default judgment pursuant to
Fed.R.Civ.P. 60(b) is left primarily to the discretion of the
district court.” United States v. $55, 518.05 in
U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984)(footnote
omitted) (citing Tozer v. Charles A. Krause Milling
Co., 189 F.2d 242, 244 (3d Cir. 1951)). The Third
Circuit “does not favor defaults, ” and,
“in a close case[, ] doubts should be resolved in favor
of setting aside the default and reaching a decision on the
merits.” Gross v. Stereo Component Sys. Inc.,
700 F.2d 120, 122 (3d Cir. 1983) (citing Farnese v.
Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982)).
district court must consider four factors in determining
whether to vacate a default judgment: “(1) whether
lifting the default would prejudice the plaintiff; (2)
whether the defendant has a prima facie meritorious
defense; (3) whether the defaulting defendant's conduct
is excusable or culpable; and (4) the effectiveness of
alternative sanctions.” Emcasco Ins. Co. v.
Sambrick, 834 F.2d 71, 73 (3d Cir. 1987).
Court will consider each of the four Emcasco factors
in turn. First, Plaintiff will not be prejudiced if the
default judgment is lifted. Plaintiff argues lifting the
default would cause prejudice because of the increased
difficulties in conducting discovery and the loss of
evidence. Plaintiff specifically argues installation records
are not retained for more than three years and, if an
installer visited Defendant's establishment as Defendant
claims, the installer is likely no longer employed with
support a finding of prejudice, ” a party can
“suggest that its ability to pursue the claim has
been hindered since the entry of the default judgment”
such as by “loss of available evidence, increased
potential for fraud or collusion, or substantial reliance
upon the judgment.” Feliciano v. Reliant Tooling
Co., 691 F.2d 653, 657 (3d Cir. 1982). In this case,
however, the evidence Plaintiff claims could be lost is
within Plaintiff's control. The installation records are
presumably within the exclusive control of Plaintiff, meaning
Plaintiff could have (upon Defendant's motion or earlier)
preserved any applicable records for discovery if need be. As
to an installer no ...