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Ashley v. Metelow

United States District Court, D. New Jersey

January 18, 2018

KEITH ASHLEY, Plaintiff,
v.
DAVID METELOW, et al., Defendants.

          HONORABLE JEROME B. SIMANDLE, Judge

          ORDER

          JEROME B. SIMANDLE U.S. District Judge.

         This matter is before the Court on the following motions:

(a) Motion by Plaintiff Keith Ashley for Default Judgment [Docket Item 34]; and
(b) Motion by Defendants David Metelow, Tanya Stelz, and Anthony Marrocco to set aside default and extend the time to answer [Docket Item 39]; and

         The Court having considered the submissions of the parties, including the Affidavit in Support of Motion to Set Aside Default subscribed by Deputy Attorney General Suzanne Davies [Docket Item 39-1], as to which no opposition has been filed;[1]and

         The Court finds:

         1. Several defendants (Metelow, Marrocco, and Stelz) were served with process on May 10, 2017, and they requested representation from the Attorney General's Office.

         2. According to DAG Davies' Affidavit, another defendant (Don Siebert) was retired from the Department of Corrections prior to the May 10, 2017 service of process which the Department of Corrections accepted on his behalf; Siebert has not yet requested the representation of the Attorney General on his behalf; the legality of service upon Siebert as a retired employee is questionable but cannot be decided on the present record.

         3. When the Attorney General's Office was anticipating Siebert's request for representation (which never came), the time for responding to the Complaint expired for Defendants Metelow, Marrocco, and Stelz on May 31, 2017 with no action taken, through inadvertence of the Attorney General's Office.

         4. Upon Plaintiff's request, the Clerk of Court entered default on July 17, 2017, pursuant to Rule 55(a), Fed. R. Civ. P., as to Metelow, Siebert, Marrocco, and Stelz.

         5. On August 2, 2017, Plaintiff filed the present motion for default judgment under Rule 55(b) [Docket Item 34], and Defendants Marrocco, Metelow, and Stelz moved, through DAG Davies, to set aside the default and to extend their time to answer or otherwise plead.

         6. Efforts on two occasions to serve another Defendant --Kenneth Nelsen -- were unsuccessful and the Marshal returned the USM-285 Forms unexecuted on May 3, 2017 [Docket Item 25] and December 1, 2017 [Docket Item 42] as to Defendant Nelsen who has still not been served.

         7. The unopposed motion of Defendants Marrocco, Metelow, and Stelz to set aside entry of default will be granted. Through excusable neglect, their attorney within the Attorney General's Office failed to timely answer or otherwise respond to the Complaint on their behalf. The defendants may have a plausible defense on the merits and the case -- raising important issues of personal rights -- should go forward rather than being ...


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