Searching over 5,500,000 cases.


searching
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

September 6, 2019

YOUSELINE BARBOT, Plaintiff,
v.
CATO CLOWNEY, Defendant.

          MEMORANDUM OPINION & ORDER

          Zahid N. Quraishi United States Magistrate Judge.

         THIS 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).

         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 request to set aside default, through its Motion as incorporated into Defendant's supplementary submission, is GRANTED. (ECF Nos. 10, 13.)

         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 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.)

         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 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).

         II. PARTIES' ARGUMENTS

         A. Defendant's Argument

         In his 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).

         Defendant 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.)

         B. Plaintiff's Opposition

         Plaintiff 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.)

         Plaintiff 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.)

         C. Defenda ...


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.