United States District Court, D. New Jersey
an action alleging conversion and fraud against James
Bentley. It comes before the court on the unopposed motion of
plaintiff, Tocci Building Corporation, for default judgment.
Defendant James Bentley has not responded to the complaint,
and the clerk has entered default. For the reasons stated
herein, the motion for default judgment will be granted.
entry of a default judgment is left primarily to the
discretion of the district court." Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing
Tozer v. Charles A. Krause Milling Co., 189 F.2d
242, 244 (3d Cir. 1951)). Because the entry of a default
judgment prevents the resolution of claims on the merits,
"this court does not favor entry of defaults and default
judgments." United States v. $55, 518.05 in U.S.
Currency, 728 F.2d 192, 194 (3d Cir. 1984). Thus, before
entering default judgment, the court must determine whether
the "unchallenged facts constitute a legitimate cause of
action, since a party in default does not admit mere
conclusions of law." DirecTV, Inc. v. Asher,
No. 3-cv-1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006)
(citing Wright & Miller, 10A Federal Practice
& Procedure § 2688 (3d ed. 1998)).
are deemed to have admitted the factual allegations of the
Complaint by virtue of their default, except those factual
allegations related to the amount of damages." Doe
v. Simone, No. 12-cv-5825, 2013 WL 3772532, at *2
(D.N.J. July 17, 2013). While "courts must accept the
plaintiffs well-pleaded factual allegations as true,"
they "need not accept the plaintiffs factual allegations
regarding damages as true." Id. (citing
Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 536
(D.N.J. 2008)). Moreover, if a court finds evidentiary
support to be lacking, it may order or permit a plaintiff
seeking default judgment to provide additional evidence in
support of the allegations in the complaint. Doe,
2013 WL 3772532, at *2-3.
Prerequisites for Entry of Default Judgment
a court may enter default judgment against a defendant, the
plaintiff must have properly served the summons and
complaint, and the defendant must have failed to file an
answer or otherwise respond to the complaint within 21-day
time period provided by the Federal Rules. See Gold Kist,
Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 18-19 (3d
September 14, 2016 and September 16, 2016, Tocci's
process made attempts to serve Bentley at his personal
residence located at 8 Hazel Street, Stanhope, N.J. 07874.
(ECF No. 4, ¶ 3 (hereinafter "Erlanger
Cert.")). On September 14, 2016, no one answered the
door. (Erlanger Cert. ¶ 4). On September 16, 2016, an
unidentified female answered the door and stated that Bentley
did not reside at the address; she refused to provide further
information. (Erlanger Cert. ¶ 4).
attorney, using the Westlaw database, found that
Bentley's current address was still 8 Hazel Street,
Stanhope, N.J. 07874. (Erlanger Cert. ¶ 5). He also
confirmed with the United States Postal Service that Bentley
had not submitted a change-of-address order. (Erlanger Cert.
¶ 6). Tocci's process server obtained a
"Nationwide Skip Trace Report" on November 3, 2017,
which also indicated that Bentley's last-known address
was 8 Hazel Street, Stanhope, N.J. 07874. (Erlanger Cert.
November 7, 2017, Tocci's process server again attempted
to serve Bentley at 8 Hazel Street, Stanhope, N.J. 07874.
(Erlanger Cert. ¶ 8). The individual inside the
residence refused to come to the door. (Erlanger Cert. ¶
8). On December 5, 2017, Tocci's process server performed
another "Nationwide Skip Trace Report" on November
3, 2017, which also found that Bentley's last-known
address was 8 Hazel Street, Stanhope, N.J. 07874. (Erlanger
Cert. ¶ 9).
filed a motion to extend time limit for service, which was
granted. (Erlanger Cert. ¶¶ 10-11). The court
authorized service by mail in accordance with New Jersey Rule
of Court 4:4-3. (Erlanger Cert. ¶ 11). On December 20,
2017, Tocci made service upon Bendey simultaneously by
certified mail and ordinary mail. (Erlanger Cert. ¶ 12).
On January 10, 2018, Tocci's attorney received
notification from the United States Postal Service that
Bentley refused to accept delivery of the certified mail.
(Erlanger Cert. ¶ 13). The ordinary mail has not been
returned. (Erlanger Cert. ¶ 14). Per New Jersey Rule of
Court 4:4-3, this constitutes adequate service.
January 22, 2018, Tocci sought an entry of default against
Bentley. (ECF No. 7). The clerk entered default on January
24, 2018. (ECF No. 7). On January 24, 2018, Tocci moved for
default judgment. (ECF No. 8). There has been no response to
I am satisfied that the prerequisites to filing a default
judgment are met. See Gold Kist, 756 F.2d at 18-19.