United States District Court, D. New Jersey
MELVIN R. MANNING, Plaintiff,
HUDSON COUNTY, Defendant.
Madeline Cox Arleo United States District Judge.
MATTER comes before the Court on Defendant County of
Hudson's (“Defendant” or
“County”) unopposed motion to set aside default,
strike the entry of service, and dismiss Plaintiff Melvin
Manning's (“Plaintiff”) Complaint for
insufficient service of process pursuant to Fed.R.Civ.P. 4
and 12(b)(5). ECF No. 15. For the reasons stated herein,
Defendant's motion is GRANTED in part
and DENIED in part.
April 18, 2017, Plaintiff filed the Complaint and an
application to proceed in forma pauperis before the
United States District Court for the District of Columbia.
ECF Nos. 1, 2. On April 24, 2017, the District of Columbia
District Court transferred the case sua sponte to
this Court. ECF No. 3. On October 20, 2017, this Court
granted Plaintiff's motion to proceed in forma
pauperis, directed the Clerk to issue a summons, and
ordered the U.S. Marshals Service (“USMS”) to
serve a copy of the Complaint, summons, and order upon
Defendant “as directed by Plaintiff.” ECF No. 8.
November 27, 2017, the summons was marked as executed against
the County based on service to “Blanca De Oliveira -
sec.” ECF No. 11. On December 7, 2017, Plaintiff sought
entry of default against Defendant. ECF No. 12. On December
8, 2017, default was entered against the County. Defendants
now urge Court to set aside the entry of default, strike the
entry of service, and dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(5), arguing that service was never
effectuated by Plaintiff because (1) Ms. Oliveira was not
permitted to accept service on behalf of the County pursuant
to Fed.R.Civ.P. 4 and (2) no summons was included in the
papers served on Ms. Oliveira.
Standard of Review
Civ. P. 55(c) permits a District Court to set aside an entry
of default for good cause. The Court must consider three
factors: “(1) whether the plaintiff will be prejudiced;
(2) whether the defendant has a meritorious defense; and (3)
whether the default was the result of the defendant's
culpable conduct.” Gold Kist, Inc. v. Laurinburg
Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985) (citing
Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir.
1984)). “A decision to set aside an entry of default
pursuant to Fed. Civ. P. 55(c) is left primarily to the
discretion of the District Court.” Bailey v. United
Airlines, 279 F.3d 194, 204 (3d Cir. 2002) (quoting
Hritz, 732 at 1180). Courts generally disfavor entry
of defaults. Harad v. Aetna Cas. & Sur. Co., 839
F.2d 979, 982 (3d Cir. 1988). Accordingly, “any doubt
should be resolved in favor of the petition to set
aside” default. Medunic v. Lederer, 533 F.2d
891, 894 (3d Cir. 1976).
Civ. P. 12(b)(5) provides for dismissal of a claim for
insufficient service of process. When assessing a motion to
dismiss for insufficient service of process, “district
courts possess broad discretion to either dismiss the
plaintiff's complaint for failure to effect service or to
simply quash service of process.” Umbenhauer v.
Woog, 969 F.2d 25, 30 (3d Cir. 1992). “[D]ismissal
of a complaint is inappropriate when there exists a
reasonable prospect that service may be obtained.”
Id. In those cases, “the district court
should, at most, quash service, leaving the plaintiffs free
to effect proper service.” Id. (citations
Whether Defendant Was Properly Served?
contends it was never properly served, arguing that
Plaintiff's purported service upon Ms. De Oliviera, via
the USMS, did not comply with the Federal Rules. The Court
state, a municipal corporation, or any other state-created
governmental organization that is subject to suit must be
served by: (A) delivering a copy of the summons and of the
complaint to its chief executive officer; or (B) serving a
copy of each in the manner prescribed by that state's law
for serving a summons or like process on such a
defendant.” Fed.R.Civ.P. 4(j)(2). In New Jersey, public
bodies may be served “by serving a copy of the summons
and complaint . . . on the presiding officer or on the clerk
or secretary thereof.” N.J. Ct. R. R. 4:4-4(a)(8).
instead of directing service upon the office of the County
Clerk - the chief executive officer of Hudson County -
Plaintiff directed the USMS to serve Defendant at 567 Pavonia
Avenue, Jersey City, New Jersey 07306, which Defendant notes
is the County Counsel's office. See ECF No. 11;
Def. Br. at 5, ECF No. 15.1; Certification of Michael L.
Dermody, Esq., ¶ 3, ECF No. 15.2 (“Dermody
Cert.”). Ms. De Oliveira, the receptionist for the
County Counsel's office and the Office of the County
Administrator, was served at this address. Def. Br. at 5;
Dermody Cert. ¶ 3. Defendant separately contends that no
copy of the summons was included in the papers served upon
Ms. De Oliveira. Def. Br. at 5; Dermody Cert. ¶ 10.
the Federal Rules, Plaintiff was required to ensure service
of the Complaint, summons, and order granting Plaintiff's
in forma pauperis application upon either the
“chief executive officer” of Hudson County,
Fed.R.Civ.P. 4(j)(2)(A), or “the presiding officer or .
. . clerk or secretary thereof[, ]” N.J. Ct. R. R.
4:4-4(a)(8). Plaintiff instead directed service on the County
Counsel's office, and no copy of the summons was served
along with the Complaint and order. Thus, the ...