United States District Court, D. New Jersey
MEMORANDUM OPINION & ORDER
N. Quraishi United States Magistrate Judge.
MATTER comes before the Court upon Defendant Cato
Clowney's ("Defendant") supplemental
submissions (Def.'s Suppl., ECF No. 13) to his Motion to
Set Aside Default (the "Motion") (Def.'s Mot.
to Set Aside Default, ECF No. 10), permitted by the Court in
its August 8, 2019 Order (Mem. Op. & Order, ECF No. 12).
Plaintiff Youseline Barbot ("Plaintiff) submitted
supplemental opposition (Pl.'s Suppl. Opp'n, ECF No.
15), and Defendant replied (Def.'s Reply, ECF No. 16).
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 request to set aside default, through its
Motion as incorporated into Defendant's supplementary
submission, is GRANTED. (ECF Nos. 10, 13.)
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 Plaintiff's
counsel that it believed 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) (ECF No. 3), but later
granted Plaintiffs 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. 8.) A response to the Complaint was due
February 19, 2019. (Id.)
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 his Motion to Set Aside Default on
May 6, 2019, and Plaintiff opposed. (ECF Nos. 10-11.) On
August 8, 2019, the Court issued an Order denying
Defendant's Motion without prejudice, but permitting
Defendant to supplement his Motion with additional
submissions to establish a meritorious defense and to show
that his untimely response to Plaintiff's Complaint was
the result of excusable conduct. (ECF No. 12.) Defendant
timely provided additional submissions to the Court (ECF No.
13), Plaintiff opposed (ECF No. 15), and Defendant replied
(ECF No. 16).
supplementation, Defendant incorporates his prior Motion (ECF
No. 10), and argues that he has set forth meritorious
defenses within his Proposed Answer (ECF No. 13-3), including
(1) that Plaintiff is unable to satisfy the requirements of
the "verbal threshold, or limitation on lawsuit,"
under N.J.S.A. 39:6A-8 (Def.'s Suppl. 3, ECF No. 13);
that the accident was not the proximate cause of
Plaintiff's injuries (id. at 4); that Plaintiff
has failed to state a claim pursuant to New Jersey's
Deemer Statute, N.J.S.A. 17:28-1.4 (id.); and that
the Court lacks subject matter jurisdiction over the matter
because the amount in controversy does not exceed $75, 000
(id. at 5).
also asserts that his delay in filing an answer was not the
result of culpable conduct, but instead the result of his
"counsel's excusable inadvertence."
(Id. at 6.) He states that he was not aware that
Plaintiff was attempting to serve him during her first
attempts because he keeps an unusual sleep and work schedule.
(Id. at 5-6.)
responds by arguing that Defendant has failed to assert any
meritorious defense. (See generally Pl.'s Suppl.
Opp'n, ECF No. 15.) Plaintiff states that Defendant is
attempting to shift his burden to establish a meritorious
defense by claiming that he is subject to the verbal
threshold, which she argues "permits the recovery of
damages to those who fall within the prescribed
categories," but does not necessarily provide a complete
bar to recovery. (Id. at 2.) Plaintiff argues that
Defendant has failed to establish meritorious defenses
because Defendant has listed "boilerplate denials and
boilerplate affirmative defenses," and that
"[D]efendant must set forth with some specificity the
grounds for his defense." (Id.)
also argues that "Defendant and his Counsel both fail to
demonstrate that his untimely response to the Complaint is
not the result of culpable conduct." (Id. at
3.) Plaintiff highlights that while Defendant provides an
explanation as to how he was not evading service, he has
failed to explain "his nor his counsel's inaction
after being timely served and how it was not the result of
culpable conduct," and that his counsel's
certification fails to explain the same. (Id. at 3.)