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Edwards v. Gahm

United States District Court, D. New Jersey

March 20, 2018

MR. RENE' D. EDWARDS, Plaintiff,
v.
JAMES R. GAHM, et al., Defendants.

          RENE' D. EDWARDS SUMMIT PLACE APARTMENTS LINDENWOLD, N.J. 08021 Appearing pro se

          MELIHA ARNAUTOVIC OFFICE OF THE ATTORNEY GENERAL OF N.J. On behalf of Defendant James R. Gahm and Dana Petrone

          MEMORANDUM OPINION & ORDER

          NOEL L. HILLMAN, U.S.D.J.

         WHEREAS, on September 21, 2016, Plaintiff's complaint was deemed filed, [1] and in his complaint Plaintiff alleges that the electronic GPS device he wears under Megan's Law, which law Plaintiff argues is not applicable to him, failed without his knowledge, and as a result he was falsely arrested, the arrest was effected through the use of excessive force, and he was otherwise subjected to various forms of discrimination;[2] and

         WHEREAS, Plaintiff has filed a motion for default judgment against all Defendants (Docket No. 23), arguing that they were served by the U.S. Marshal on January 2, 2018 and January 8, 2018, and because more than 21 days elapsed without Defendants filing an answer or otherwise responding to Plaintiff's complaint, they are therefore in default and he is entitled to judgment in his favor on his claims; and

         WHEREAS, under Federal Civil Procedure Rule 55, obtaining a default judgment is a two-step process: First, when a defendant has failed to plead or otherwise respond, a plaintiff must request the entry of default by the Clerk of the Court, Fed.R.Civ.P. 55(a), and 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) applying to the Court, Fed.R.Civ.P. 55(b); and

         WHEREAS, on February 2, 2018, Plaintiff filed a request for the Clerk to enter default (Docket No. 22), along with his motion for default judgment; but

         WHEREAS, the Clerk informed Plaintiff that his request for default could not be granted because on January 31, 2018, this Court granted the request of Defendants James R. Gahm and Dana Petrone for a 30-day extension of time to respond to Plaintiff's complaint[3] (Docket No. 21); and

         WHEREAS, Defendants Gahm and Petrone timely responded to Plaintiff's complaint per the Court's extension by filing a motion to dismiss Plaintiff's complaint[4] (Docket No. 25); and

         WHEREAS, because these two Defendants have appeared in the matter and have responded to Plaintiff's complaint, default or default judgment cannot be entered as to them; and

         WHEREAS, it appears that summonses were returned as unexecuted as to Defendants James Samalonis, Ronald Berreman, Andrew Larue, and Steven Jordan (Docket No. 27, 28, 29, 30), and because these defendants have not been properly served, default or default judgment cannot be entered as to these defendants at this time, see F.T.C. v. Preferred Platinum Services Network, LLC, 2010 WL 5419024, at *2 (D.N.J. 2010) (“Valid service of process and the Clerk of Court's entry of default are prerequisites to entry of judgment by default.”); Louisiana Counseling and Family Services, Inc. v. Makrygialos, LLC, 543 F.Supp.2d 359, 364 (D.N.J. 2008) (citing Anchorage Assoc. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n.9 (3d Cir. 1990)) (“Federal Rule of Civil Procedure 55(b)(2) authorizes courts to enter a default judgment against a properly served defendant who fails to file a timely responsive pleading.”); but WHEREAS, summons was returned as executed as to Defendant “OFFICER PTLM-BURROWS” on January 8, 2018 (Docket No. 16 at 1), and Defendant Officer Ptlm-Burrows has not responded to Plaintiff's complaint or otherwise appeared in the matter, but because default has not been entered against this Defendant, the Court cannot consider Plaintiff's motion for default judgment;

         Therefore, IT IS on this 20th day of March, 2018

         ORDERED that the MOTION for Default Judgment by RENE' D. EDWARDS [23] be, and the same hereby is, DENIED WITH PREJUDICE as to Defendants James R. Gahm and Dana Petrone, and DENIED WITHOUT PREJUDICE as to the remaining Defendants[5]; and it is further

         ORDERED that Defendants James R. Gahm and Dana Petrone shall serve a paper copy of their motion to dismiss on Plaintiff within 7 days in accordance with Fed.R.Civ.P. 5(b)(1), and file with the Court an updated certificate of service; and it is further ORDERED that Plaintiff shall have 15 days from the date he receives the copy of the ...


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