United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
Honorable James B. Clark, III United States Magistrate Judge.
MATTER comes before the Court by way of Plaintiff
Maurice Graves (“Plaintiff” or “Mr.
Graves”) motion for default judgment [ECF No. 9].
Plaintiff seeks an award in the amount $175, 000.00 for past
and future pain and suffering. Plaintiff's motion is
Report and Recommendation is issued pursuant to 28 U.S.C.
§ 636(b)(1)(B). For the reasons set forth below, the
undersigned respectfully recommends that the Court enter an
Order granting Plaintiff's motion for default judgment.
It is further recommended that the Court grant Plaintiff an
award of $55, 000.00 for past and future pain and suffering.
7, 2017, Plaintiff filed a Complaint against Defendant Efren
Vasquez-Pillacela (“Defendant”). ECF No. 1. The
event giving rise to this action occurred on June 7, 2015,
when Mr. Graves was a passenger in a motor vehicle owned and
operated by Sandy Henry (the “Henry vehicle”).
Compl. ¶¶ 4, 7. While traveling in the Henry
vehicle on interstate 280 in Newark, New Jersey, Mr. Graves
was involved in a motor vehicle accident with a vehicle
driven by Defendant, which allegedly resulted in Mr. Graves
suffering severe and permanent injuries. Id.
¶¶ 8-17. According to Plaintiff's Complaint,
Defendant's reckless, careless and negligent driving
caused the accident. Id. ¶ 16.
filed the executed proof of service with the summons to
Defendant, indicating Defendant had been personally served
with the Complaint on September 13, 2017. ECF No. 4.
Plaintiff's Complaint went unanswered, and consequently,
on November 9, 2017, the Clerk entered default against
Defendant. On November 8, 2017, Plaintiff filed a Motion for
Default Judgment against Defendant. On May 8, 2018, the Court
issued a Letter Order scheduling a proof hearing to determine
the proper amount of damages to be assessed in conjunction
with Plaintiff's application for a default judgment. ECF
No. 14. In the Letter Order, the Court directed Plaintiff to
serve a copy of said Order on Defendant, giving Defendant
another opportunity to make an appearance and litigate the
claims against him. Id. On May 22, 2018, the Court
conducted a proof hearing to determine Plaintiff's
damages. Defendant did not attend the hearing, nor did he
file any papers in connection therewith.
entry of default, Federal Rule of Civil Procedure 55(b)
permits a party to seek entry of default judgment against a
defendant that fails to appear in an action. Notably, because
entry of default requires “that the factual allegations
of the complaint, except those relating to the amount of
damages, . . . be taken as true, ” the party seeking
entry of default judgment may proceed with limited proofs.
Malik v. Hannah, 661 F.Supp.2d 485, 490 (D.N.J.
2009) (quoting Comdyne I., Inc. v. Corbin, 908 F.2d
1142, 1149 (3d Cir.1990) (internal quotations omitted)).
Notably, upon entry of default and a party's submission
of proofs related to damages, the decision of whether to
enter default judgment against a party “‘is left
primarily to the discretion of the district
court.'” Id. (quoting Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d Cir. 1984)).
entry of default judgment is left largely to the discretion
of the Court, prior to entry, the Court should consider:
“(1) whether the party subject to default has a
meritorious defense, (2) the prejudice suffered by the party
seeking default, ” and (3) whether the defaulting
party's conduct is culpable or excusable. Id.
(quoting Doug Brady, Inc. v. N.J. Bldg. Laborers
Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008)
(internal citations omitted)).
this Court finds good cause to recommend entry of a default
judgment against Defendant. First, the current record does
not show any meritorious defenses. Because Defendant did not
respond, the Court cannot determine whether Defendant had
meritorious defenses that are not reflected in the record.
The Court therefore concludes that Defendant has no
meritorious defense. See Teamsters Pension Fund of
Philadelphia & Vicinity v. Am. Helper, Inc., No.
CIV. 11-624 JBS/JS, 2011 WL 4729023, at *4 (D.N.J. Oct. 5,
2011). Second, it is clear that Plaintiff has
been prejudiced by Defendant's failure to answer because
Plaintiff has been unable to move forward with the case and
has been delayed in seeking relief. See Malik v.
Hannah, 661 F.Supp.2d 485, 490-491 (D.N.J. 2009).
Finally, where, as here, Defendant has failed to respond,
there is a presumption of culpability. See
Teamsters, 2011 WL 4729023, at *4. Accordingly, the
undersigned recommends that this Court enter default judgment
Amount of Damages
found that entry of default judgment is appropriate, the
Court now turns to the calculation of Mr. Graves'
damages. Pursuant to Fed.R.Civ.P. 55(b)(2), “[t]he
court may conduct hearings . . . when, to enter or effectuate
judgment, it needs to (A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of
any allegation by evidence; or (D) investigate any other
22, 2018, the Court conducted a proof hearing to determine
the amount of Plaintiff's damages. At the hearing, the
Court heard testimony from Mr. Graves, as well as limited
argument from Mr. Graves' counsel. During the hearing,
counsel for Plaintiff submitted a declaration of Getahun
Kifle, M.D (“Dr. Kifle”) and a comprehensive
narrative report on Mr. Graves. See ECF No. 11. Mr.
Graves testified that as a result of the automobile accident
he sustained injuries to his neck, left shoulder, left knee
and lower back. He also claims that he suffered from
dizziness. A few days following the accident, Mr. Graves was
treated at Woodhull Hospital in Brooklyn, New York. Mr.
Graves testified that during the hospital visit he was
prescribed muscle relaxers and the doctor recommended