United States District Court, D. New Jersey
JOHN E. REARDON, Plaintiff,
REV. JOHN BOHRER, et al., Defendants.
B. SIMANDLE U.S. District Judge
matter comes before the Court upon the motions by Plaintiff
John E. Reardon ("Plaintiff") for Default and
Default Judgment [Docket Item 7 6] and for Default Judgment
[Docket Item 88], and a cross-motion for extension of time to
file Answer by Defendants Lawrence Luongo, Esq.
("Luongo"), A.L. Simon ("Simon"), and
Daniel B. Zonies ("Zonies"). [Docket Item 79.] The
Court finds as follows:
August 8, 2017, Plaintiff filed a Complaint against various
Defendants alleging numerous causes of action under the U.S.
and New Jersey Constitutions, as well as federal and state
statutes. [See generally Docket Item 1.] An Amended
Complaint was filed on March 12, 2018, which for the first
time named Luongo, Simon, and Zonies as Defendants. [Docket
Item 41.] The Clerk of Court issued a Summons as to the newly
added Defendants on March 14, 2018. [Docket Item 43.]
April 6, 2018, Plaintiff filed a Proof of Service on the
docket [Docket Item 50], wherein he alleged that the Summons
and Complaint had been served upon Defendant Simon by a
Service representative listed as Martin Ackley, who declared
under penalty of perjury that he personally served Defendant
Simon at his home at 528 Williams Avenue in Runnemede, New
Jersey on March 16, 2018. [Id. at 7.] In that same
filing, Martin Ackley also declared under penalty of perjury
that he personally served a man named Harry Carroll at
Defendant Zonie's office located at 1011 East Evesham
Road in Vorhees, New Jersey on March 16, 2018. [Id.
at 8.] The following week, on April 12, 2018, Plaintiff filed
another Proof of Service on the docket [Docket Item 56],
wherein he alleged that the Summons and Complaint were served
upon Defendant Luongo by Martin Ackley, who declared under
penalty that he had personally served someone named
"Susan" at Mr. Luongo's office at 344 Route 73,
Berlin New Jersey on March 23, 2018. [Id. at 2.] The
Clerk of Court did not enter Default against any Defendant.
Defendants Simon, Zonies, and Luongo have each certified,
subject to punishment, that they never received service of
the Summons and Complaint. [Docket Items 79-1, 79-2 &
79-3.] For example, Defendant Luongo swore that he has no
personal knowledge of anyone named "Susan" with the
right to accept service for him. [Docket Item 79-2 at ¶
7.] Moreover, Defendant Zonies swore that he no longer rented
at the location Martin Ackley had attempted service and that
"Harry Carroll was never a member of his household or
business, nor was he ever authorized to accept service of
process." [Docket Item 79-3 at ¶¶ 6-8.] For
these reasons, and others, Defendants oppose Plaintiff's
motions for Default and Default Judgment and seek an
extension of time to answer. [Docket Item 79-4 at 5.]
Federal Rule of Civil Procedure 55(b)(2) authorizes the entry
of a default judgment against a party that has failed to
answer or otherwise respond to the pleadings. Pursuant to
Rule 55, obtaining a default judgment is a two-step process.
First, when a defendant has failed to plead or otherwise
defend, the Clerk of the Court must enter the party's
default. See Fed.R.Civ.P. 55(a). Second, a plaintiff
may then obtain a default judgment by either: (1) asking the
Clerk to enter judgment, if the judgment is a sum certain; or
(2) applying to the Court. See Fed.R.Civ.P. 55(b).
Critically, before granting a default, as well as any
subsequent default judgment, the Court must determine whether
there is sufficient proof of service. Gold Kist, Inc. v.
Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985)
(noting that" [a] default judgment entered when there
has been no proper service of the complaint is, a.
fortiori, void, and should be set aside") .
noted above, the Clerk of Court has not entered Default
against any Defendant in this matter. Moreover, Defendants
Simon, Zonies, and Luongo have each certified that they were
never properly served with the Complaint and the Court
credits their sworn statements. For these reasons, the Court
has determined there is insufficient proof of service upon
any of these three Defendants and neither Default nor Default
Judgment are warranted at this time.
Accordingly, and for good cause shown; IT IS this
14thday of 2019
that Plaintiff's motions for Default and Default Judgment
[Docket Item 76] and Default Judgment [Docket Item 88] shall
be, and hereby are, DENIED; and it
that Defendants Zonies, Luongo, and Simon's cross-motion
for an extension of time to file Answer [Docket Item 79]
shall be, and hereby is, GRANTED;
Defendants Zonies, Luongo, and Simon shall file an ...