United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
action stems from the dissolution of a business venture
between Jerry Somerset and Joseph Elam. Somerset sues under
the Americans With Disabilities Act ("ADA"), 42
U.S.C. § 12101, et seq., and for breach of contract,
among other causes of action. Somerset alleges that he made
the down payment on a van for Elam to drive in connection
with their floor refurbishing business. Elam, Partners
Pharmacy, LLC, and Strategic Delivery Systems
("SDS") allegedly violated an agreement regarding
the purchase and commercial use of the van.
sued Elam in state court; the matter went to trial; and
judgment was entered in favor of Elam. Somerset v.
Elam, No. DC-06311-15 (N.J. Superior Court, Law
Division, Special Civil Part) (the "State Court
Action"). Thereafter, Somerset brought suit in federal
court against Joseph Elam; the State of New Jersey; the Hon.
Frank Covello, J.S.C., who presided in the State Court
Action; Lawrence D. Eichen, Elam's attorney in the State
Court Action; SDS (seemingly a business in which Elam used
the van); and Partners Pharmacy, LLC. In an earlier opinion
and order, I dismissed with prejudice Somerset's claims
against the State, Judge Covello, and Partners Pharmacy, LLC.
(DE 60, 61).
before this Court are SDS's motions to dismiss the
complaint for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6) and to set aside the entry of default
pursuant to Fed.R.Civ.P. 55(c). (DE 62). For the reasons
stated herein, the motions will be granted.
FACTUAL AND PROCEDURAL SUMMARY
describe the background of the prior state court action in
the September 29, 2017 Opinion in this case. (DE 30, as
amended on December 20, 2018 at ¶ 70, DE 71). I
incorporate that Opinion here and refer the parties to
Section II of that Opinion for a more complete background of
the prior state court action. (DE 70 at 6).
short, Somerset filed a complaint against Elam in state court
in November 2015, alleging that, inter alia, Elam
improperly used the van for his own purposes and failed to
share the profits with Somerset. Somerset v. Elam,
No. DC-06311-15 (N.J. Superior Court, Law Division, Special
Civil Part) (DE 24-7 at 2). Judge Covello ruled in Elam's
favor. Id. Subsequently, Somerset filed a complaint
in this federal court action on February 14, 2017. (DE 1).
2017, Somerset requested an entry of default against Partners
Pharmacy, LLC, and SDS for failure to plead or otherwise
defend, which the Clerk of the Court entered. (DE 23).
other defendants besides SDS then filed motions to dismiss
the original complaint. (DE 8, 24, 25). Partners Pharmacy
also moved to vacate the Clerk's entry of default. On
September 26, 2017, I granted those defendants' motions,
dismissing the complaint without prejudice to the filing of a
motion for leave to amend the complaint and vacating the
Clerk's entry of default as to Partners Pharmacy. (DE 30,
31). On October 23, 2017, Somerset filed an amended
complaint, which is the currently operative pleading. (DE
defendants Partners Pharmacy, the State of New Jersey, and
Judge Covello then moved to dismiss the amended complaint.
(DE 39, 49). On June 20, 2018, I granted those
defendants' motions, dismissing the amended complaint
with prejudice as to Partners Pharmacy, the State of New
Jersey, and Judge Covello. (DE 60, 61).
to the disposition of the motions to dismiss the amended
complaint, in a letter filed on May 10, 2018, SDS sought to
join Partners Pharmacy's motions to dismiss and to vacate
the entry of default. (DE 57). In that letter, SDS explained
that it did not receive notice of either the original
complaint or the amended complaint. (Id.). In
addition to seeking to join Partners Pharmacy's motion to
dismiss, SDS also sought to enter its appearance and vacate
the entry of default, noting that dismissal is appropriate
"[b]ecause Somerset alleges the same allegations against
[SDS] as he does Partners [Pharmacy]." (DE at 1).
disputed that SDS was not properly served and asserted that
the United States Marshal Services confirmed return receipt
served on SDS. (DE 59). Rather than allow SDS to join
Partners Pharmacy's motion to dismiss, I requested that
SDS file formal motions to vacate the entry of default and to
dismiss the amended complaint. (DE 60 at 2, n. 1). SDS
complied with that request and filed the current motions to
dismiss the amended complaint and to vacate the entry of
default against it. (DE 62).
allegations involve the dissolution of a business venture
between Somerset and Elam, whereby Somerset provided the
money for a van that would be driven by Elam as part of their
business, and they would split the profits. Somerset
complains that Elam used the van for unauthorized purposes
and failed to split the proceeds with Somerset. Additional
detail on these ...