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Somerset v. State

United States District Court, D. New Jersey

March 4, 2019

JERRY SOMERSET, Plaintiff,
v.
THE STATE OF NEW JERSEY, et al., Defendants.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE.

         This 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.

         Somerset 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).

         Now 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.

         II. FACTUAL AND PROCEDURAL SUMMARY

         A. Procedural History

         I 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).

         In 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).

         In May 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).

         The 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 37).

         The 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).

         Prior 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).

         Somerset 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).

         B. Factual Allegations

         Somerset's 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 ...


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