United States District Court, D. New Jersey
AVELINO SAMBADE, 151 AVENUE C DEVELOPMENT, LLC, and DAL DEVELOPMENT, LLC, Plaintiffs,
BARBERI CONSTRUCTION, LLC, ANTONIO BARBERI, PETER RINALDI and JOHN DOES 1-10, Defendants.
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER, UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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
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).
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, ” 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.
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.
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