United States District Court, D. New Jersey
LETTER OPINION & ORDER
SALAS UNITED STATES DISTRICT JUDGE
the Court are Plaintiff Kona Ice, Inc.'s
(“Plaintiff”) motion for default judgment (D.E.
No. 10) and Defendants Anthony Gonzalez, Cindy Gonzalez, and
Snowball Factory's (“Defendants”) motion to
set aside default (D.E. No. 12). Plaintiff also requests
attorney's fees for the costs associated with this
motion. (See D.E. No. 13 at 6). The Court has
considered the parties' submissions and decides the
matter without oral argument. See Fed. R. Civ. P.
78(b). For the reasons below, the Court DENIES
Plaintiff's motion for default judgment and request for
attorney's fees, and GRANTS Defendants' motion to set
is an assignee of U.S. Patent No. 8, 157, 136 (“the
'136 Patent”). (D.E. No. 1 ¶¶ 7 & 8).
The '136 Patent is directed to a “mobile
confectionary apparatus for dispensing beverages and/or
frozen confections and the like, includes a vehicle
configured for travel over public roads to a location such as
a parking lot, street, festival or fairgrounds, or the
like.” (D.E. No. 1, Ex. 1 '136 Patent at Abstract).
Plaintiff alleges that “Defendants have infringed at
least Claims 19, 21, 23 and 24” of the '136 Patent
with their “service vehicles through which they offer
frozen treats. . . .” (D.E. No. 1 ¶¶ 9 &
filed its Complaint on October 2, 2017. (See D.E.
No. 1). Plaintiff requested, and the Clerk of Court entered
default as to Defendants, on February 2, 2018. (See
D.E. No. 8). Plaintiff filed the instant motion for default
judgment on May 7, 2018, and Defendants filed the instant
motion to set aside default on May 10, 2018. (See
D.E. Nos. 10 & 12).
Rule of Civil Procedure 55 governs default. Under Rule 55(a),
a plaintiff can request the clerk's entry of default
against a party that “has failed to plead or otherwise
defend as provided by these rules and that fact is made to
appear by affidavit or otherwise.” Fed.R.Civ.P. 55(a).
Thereafter, a plaintiff can seek the Court's entry of
default judgment under either Rule 55(b)(1) or Rule 55(b)(2).
Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance
Club, Inc., 175 Fed.Appx. 519, 521 n.1 (3d. Cir. 2006)
(“Prior to obtaining a default judgment under either
Rule 55(b)(1) or Rule 55(b)(2), there must be entry default
as provided by Rule 55(a).”). Finally, Rule 55(c)
provides, “for good cause shown the court may set aside
an entry of default and, if judgment by default has been
entered, may likewise set it aside in accordance with Rule
imposing the extreme sanction of default, district courts
must make explicit factual findings as to: (1) whether the
party subject to default has a meritorious defense, (2) the
prejudice suffered by the party seeking default, and (3) the
culpability of the party subject to default. Emcasco Ins.
Co. v. Sambrick, 834 F.2d 71, 73-74 (3d Cir. 1987)
(“We have further required the district court to make
explicit findings concerning the factors it must consider in
rendering judgment by default or dismissal, or in declining
to reopen such judgment.”). In weighing the factors,
district courts must remain mindful that, like dismissal with
prejudice, default is a sanction of last resort. Poulis
v. State Farm Fire & Casualty Co., 747 F.2d 863,
867-68 (3d Cir. 1984) (“We reiterate what we have said
on numerous occasions: that dismissals with prejudice or
defaults are drastic sanctions, termed ‘extreme' by
the Supreme Court, National Hockey League, 427 U.S.
639, 643 (1976), and are to be reserved for comparable
cases.”). To this end, district courts must resolve all
doubt in favor of proceeding on the merits. Zawadski de
Bueno v. Bueno Castro, 822 F.2d 416, 420 (3d Cir.1987).
the Third Circuit mandates explicit factual findings,
evidence regarding the circumstances leading up to the
default becomes the polestar of the district courts'
review. Thus, affidavits of individuals with personal
knowledge of said circumstances are indispensable. Pursuant
to Local Civil Rule 7.2(a), “Affidavits, declarations,
certifications and other documents of the type referenced in
28 U.S.C. § 1746 shall be restricted to statements of
fact within the personal knowledge of the signatory.”
Moreover, the Court must disregard any argument of facts and
the law contained in the affidavits. Id. As one
commentator notes, “the court has not hesitated to
enforce the directives of this rule.”
courts must find this factor in favor of proceeding on the
merits when the party subject to entry of default can proffer
a meritorious defense. Facial merit will suffice to support a
finding that this factor favors proceeding on the merits.
Emcasco Ins. Co., 834 F.2d at 74 (“We need not
decide the legal issue at this time; it is sufficient that