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Tocci Building Corp., Inc. v. Bentley

United States District Court, D. New Jersey

July 20, 2018

TOCCI BUILDING CORPORATION, INC., Plaintiff,
v.
JAMES BENTLEY, Defendant.

          OPINION

          KEVIN McNULTY. U.S.D.J.

         This is 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.

         I. DISCUSSION

         "[T]he 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)).

         "[D]efendants 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.

         A. Prerequisites for Entry of Default Judgment

         Before 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 Cir. 1985).

         On 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).

         Tocci's 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. ¶ 7).

         On 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).

         Tocci 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.

         On 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 this motion.

         Accordingly, I am satisfied that the prerequisites to filing a default judgment are met. See Gold Kist, 756 F.2d at 18-19.

         B. ...


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