Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barbot v. Clowney

United States District Court, D. New Jersey

August 8, 2019

CATO CLOWNEY, Defendant.



         THIS MATTER comes before the Court by way of Defendant Cato Clowney's ("Defendant") Motion to Set Aside Default (the "Motion"). (Mot. to Set Aside Default, ECF No. 10.) Plaintiff Youseline Barbot ("Plaintiff) opposed, and Defendant did not reply, (PL's Opp'n Br., ECF No. 11.)

         The Court has considered the parties submissions without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, Defendant's Motion is denied without prejudice, and Defendant is permitted to supplement his Motion and Proposed Answer.

         I. BACKGROUND

         This is an action arising from claims for personal injuries sustained in a motor vehicle collision on August 29, 2016. (See generally Compl., ECF No. 1.) After filing the Complaint on July 23, 2018, Plaintiff initiated service on Defendant via a process server. (ECF Nos. 1-2.) The process server made three service attempts at Defendant's home, twice on a weekday during business hours and once on a weekend. (Pl.'s Mot. for Substituted Service, Certification of Richard A. Wolfe, Esq. ¶¶ 5-7, Ex. B, ECF No. 5.) Guaranteed Subpoena Service then informed Plaintiffs counsel that Defendant was evading service. (Id., ¶ 5, Ex, A.) On October 25, 2018, the Court issued a Notice of Call for Dismissal pursuant to Federal Rule of Civil Procedure 4(m), but later granted Plaintiff's requested thirty-day extension. (ECF No. 4.) Plaintiff filed the Motion for Substituted Service on November 14, 2018. (ECF No. 5.) In response, this Court issued a Letter Order instructing Plaintiff to attempt service on a weekday before 8:00 a.m. or after 6:00 p.m. (ECF No. 6.) Plaintiff effected service on Defendant on January 28, 2019, (ECF No. 7.) A response to the Complaint was due February 19, 2019. (ECF No. 8.)

         Defendant did not answer or otherwise respond to the Complaint. On February 22, 2019, Plaintiff filed a Request for Entry of Default; The Clerk entered default on February 25, 2019. (ECF No. 9.) Defendant filed the instant Motion on May 6, 2019, and Plaintiff opposed. (ECF Nos. 10-11.)


         A. Defendant's Argument

         Defendant argues that default should be vacated because doing so will not prejudice the Plaintiff; Defendant has alleged a meritorious defense; and Defendant's failure to respond to the Complaint is not the result of his culpable conduct. (See generally Def.'s Moving Br., ECF No. 10-2.) Defendant contends that Plaintiff will not be prejudiced because no evidence has been lost given that the claims rely on testimonial evidence, medical records, and experts. (Id. at 3.)

         Defendant also claims that default is inappropriate when a defendant has alleged "at least one meritorious defense." (Id. at 3-4 (quoting Felictano v. Reliant Tooling Co., 691 F.2d 653, 657 (3d Cir. 1982)).) Defendant argues that a defense is meritorious if there is a "hint of suggestion" that it would constitute a complete defense. (Id. (quoting Keegal v. Key West & Caribbean Trading Co, Inc., et al., 627 F.2d 372, 374 (D.C, Cir. 1980)).) Defendant also argues that Plaintiff's alleged injuries and damages have not been proven by any documentation, testimony, or expert reports. (Id. at 3.) Further, Defendant posits that the District Court may lack jurisdiction because Defendant has not investigated whether Plaintiffs injuries exceed $75, 000 to meet the threshold for diversity jurisdiction. (Id. at 4.) Defendant asserts the defenses of comparative negligence, failure to state a claim, statute of limitations, laches, and estoppel, (See Proposed Answer ¶¶ 1-12, ECF No. 10-4.)

         Finally, Defendant contends that the default was the result of excusable neglect. (Def.'s Moving Br. 4.) Defendant claims that there is no evidence of culpable conduct in the record. (Id.) Defendant argues that dismissal by default should be a last resort. (Id. (quoting Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867-68 (3d Cir. 1984)).)

         B. Plaintiff's Argument

         Plaintiff responds that Defendant's Motion should be denied because Defendant has not presented a meritorious defense. (Pl.'s Opp'n Br. 6.) Plaintiff states that whether a defendant has a meritorious defense is the threshold issue of a motion to set aside default. (Id. (quoting United States v. $55, 518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984)).) Plaintiff asserts that "the defendant must set forth with some specificity the grounds for his defense, so the court may determine its substantive merit." (Id. at 7 (citing Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 982 (3d Cir. 1988)).) Plaintiff argues that Defendant has not articulated with specificity the basis of any substantive or procedural defenses in either his Proposed Answer or moving papers, nor has Defendant provided factual background for his defenses. (Id.) Because Defendant has not met the threshold requirement of establishing a meritorious defense, Plaintiff asserts that Defendant's Motion should be denied, (Id.)

         III. LEGAL ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.