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Sambade v. Barberi Construction LLC

United States District Court, D. New Jersey

May 3, 2018

AVELINO SAMBADE, 151 AVENUE C DEVELOPMENT, LLC, and DAL DEVELOPMENT, LLC, Plaintiffs,
v.
BARBERI CONSTRUCTION, LLC, ANTONIO BARBERI, PETER RINALDI and JOHN DOES 1-10, Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL A. HAMMER, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This matter comes before the Court by way of Defendant Antonio Barberi's motion to vacate default judgment. D.E. 58. Pursuant to Local Rule 72.1, the Honorable Kevin McNulty, United States District Judge, referred the motion to this Court for Report and Recommendation. The Court has considered the motion without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court respectfully recommends that the District Court grant Defendant Antonio Barberi's motion to vacate default judgment.

         II. BACKGROUND

         This matter arises from a billing dispute regarding the construction of a condominium project in Bayonne, New Jersey. Complaint, D.E. 1, ¶ 6. At all relevant times, Defendant Antonio Barberi was the alleged owner of Barberi Construction, a construction company based in New Jersey. Id. at ¶¶ 2-3. Plaintiffs 151 Avenue C and DAL Development were development companies. Id. at ¶ 15. Plaintiff Avelino Sambade was their principal officer. Id. Plaintiffs allege that Defendants Antonio Barberi and Peter Rinaldi conspired to extort $61, 000 from Plaintiff Sambade. Their efforts allegedly included arranging for an unnamed co-conspirator to attack Sambade with a baseball bat on December 30, 2009. Plaintiffs allege Defendants Antonio Barberi and Peter Rinaldi instructed the assailant to “strike fear” in Sambade. Id. at ¶¶ 7-8.

         On December 16, 2016, the District Court entered default judgment for Plaintiff and against Defendants Antonio Barberi and Barberi Construction LLC, in the amount of $450, 000. D.E. 46, 47. On November 17, 2017, Defendant Antonio Barberi filed the instant motion to vacate default judgment. D.E. 58. On December 4, 2017, Plaintiff filed opposition to the motion. D.E. 62.

         III. DISCUSSION

         Defendant Antonio Barberi moves to vacate the default judgment pursuant to Federal Rules of Civil Procedure 60(b)(4) and 60(d)(2). Rule 60 provides in pertinent part as follows:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons . . . the judgment is void.
This rule does not limit a court's power to . . . grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action.

Fed. R. Civ. P. 60(b)(4), (d)(2).

         Relying on Rule 60(b)(4), Defendant Antonio Barberi argues that Plaintiffs never effected proper service of the summons and complaint on him. The proof of service states that on April 18, 2012, the process server, David Riccardi, effected service of process by leaving copies of the summons and complaint with “Pedro Barberi, ”[1] at “defendant's dwelling house or usual place of abode with a person of suitable age and discretion residing therein.” Certification of Antonio Barberi, (“Barberi Cert.”), Ex. A, D.E. 58-2; see also Verification of Christine E. Finnegan, Esq., Ex. D, D.E. 62-7. The return of service itself does not provide the physical address at which Mr. Riccardi left the summons and complaint with Pietro Barberi for Antonio Barberi. However, the summons provides the address: 260 Broadway, Bayonne, New Jersey 07002. Barberi Cert., Ex. B, D.E. 58-2. The summons for Defendant Barberi Construction provided the same address. Id., Ex. C, D.E. 58-2. Defendant Antonio Barberi asserts, and Plaintiffs do not refute, that 260 Broadway, Bayonne, New Jersey was the business address for Barberi Construction LLC and Graziella Tile. Id. ¶¶ 6-7. Defendant Antonio Barberi also asserts, and Plaintiffs do not refute, that neither he nor his father ever resided at 260 Broadway. Id. ¶¶ 8-9. Defendant Antonio Barberi argues that because service was not proper, the default judgment entered again him is void because jurisdiction has not been established.

         Plaintiffs argue that Defendant Antonio Barberi failed timely to move for relief under Rule 60(b) or 60(c), because he moved to vacate default judgment more than one year after the Court entered the judgment. Plaintiffs' timeliness argument must fail. Rule 60(c) states that “[a] motion under Rule 60(b) must be made within a reasonable time - and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or date of the proceeding.” In this case, Defendant Antonio Barberi seeks to vacate default judgment pursuant to Rule 60(b)(4), which does not fall under the one-year time limitation established under Rule 60(c). However, even if the one-year requirement applied, it would not bar the motion. The District Court entered default judgment against Defendant Antonio Barberi on December 16, 2016. Antonio Barberi filed the instant motion to vacate on November 17, 2017, within the one year time limit required for Rule 60(b)(1)-(3). Therefore Plaintiffs' timeliness argument is without merit.

         Plaintiffs next vaguely argue that “there was no mistake, inadvertence, surprise, or excusable neglect.” Plaintiff's Brief in Opposition, D.E. 62, at 4. They offer no additional explanation. In any event, that argument fails because Defendant Antonio Barberi does not seek relief under Rule 60(b)(1). He does not contend that his own mistake or inadvertence necessitates relief; he claims that ...


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