United States District Court, D. New Jersey
OPINION & ORDER
Michael Vazqurez, U S.D.J.
matter comes before the Court on Plaintiff PCS Wireless
LLC's ("Plaintiff' or "PCS") unopposed
motion for default judgment as to all Defendants pursuant to
Fed.R.Civ.P. 55(b)(2). D.E. 19. The Court reviewed all
submissions made in support of the motion and considered the
motion without oral argument pursuant to Fed, R. Civ. P.
78(b) and L. Civ. R. 78.1(b). For the reasons stated below,
Plaintiffs motion is DENIED.
brief, Plaintiff alleges that Defendants are involved in a
fraudulent scheme whereby Defendants contact Plaintiffs
customers, potential customers, and vendors. Defendants
contact those persons using email addresses that are slightly
different than the actual email addresses affiliated with
Plaintiff. Defendants falsely identify themselves as PCS
agents and attempt to defraud the individual they contacted
into wiring money or shipping Defendants goods with a PCS
account. Compl. ¶¶ 9-14, 22, 90, 122, 126. In
furtherance of the fraudulent scheme, Defendants
misappropriated and infringed Plaintiffs trademark by using
it on fabricated invoices and in the signature line of the
fraudulent emails. Id. ¶¶ 3, 35, 36, 52,
16, 2019, Plaintiff filed a Verified Complaint and also
requested a temporary restraining order to stop
Defendants' alleged illegal conduct. D.E. 1. The Verified
Complaint asserts claims for (1) fraud/misrepresentation; (2)
violations of the Lanham Act -- false designation of origin,
15 U.S.C. § 1125(a)(1)(A); (3) civil conspiracy; (4)
accounting; and (5) constructive trust. D.E. 1. The Court
entered a temporary restraining order (the "TRO")
and ordered that Defendants show cause on or before May 28,
2019 as to why a preliminary injunction should not be
entered. D.E. 3. The Court also granted Plaintiffs
request to serve Defendants via alternate means. Id.
were served with copies of the Summons, Verified Complaint,
and the TRO between May 21 and 23, 2019 via the
Court-approved alternate means. D.E. 9. Defendants failed to
respond by the return date of the order to show cause. On May
28, 2019, the Court entered a preliminary injunction
extending the relief set forth the TRO. D.E. 13. Defendants
also failed to answer or otherwise respond to the Verified
Complaint. As a result, the clerk of court entered default as
to all Defendants on July 8, 2019. Plaintiff subsequently
filed this motion for default judgment pursuant to Federal
Rule of Civil Procedure 55.
Rule of Civil Procedure 55 allows for the entry of default
against a party that fails to plead or otherwise defend
against claims. Fed.R.Civ.P. 55. "The entry of a default
judgment is largely a matter of judicial discretion, although
the Third Circuit has emphasized that such 'discretion is
not without limits, . . . and [has] repeatedly state[d] [its]
preference that cases be disposed of on the merits whenever
practicable.'" Chanel, Inc. v.
Gordashevsky, 558 F.Supp.2d 532, 535 (D.N.J. 2008)
(quotingHritz v. Woma Corp., 732 F.2d 1178, 1181 (3d
entering a default judgment, a court must determine whether
(1) it has personal and subject matter jurisdiction; (2) the
defendants were properly served; (3) the complaint
sufficiently pleads a cause of action; and (4) the plaintiff
has proven damages. Days Inns Worldwide, Inc. v. Jinisha
Inc., No. 14-6794, 2015 WL 4508413, at *1 (D.N.J. July
24, 2015). Additionally, a court must determine the
appropriateness of default judgment by weighing (1) the
prejudice suffered by the party seeking default judgment; (2)
whether the party subject to the default has a meritorious
defense; and (3) the culpability of the party subject to
default. Id. at *2.
the Court can enter default judgment, it must find that
process was properly served on the Defendants]."
Teamsters Pension Fund of Phila. & Vicinity v. Am.
Helper, Inc., No.11-624, 2011 WL 4729023, at *2 (D.N.J.
Oct. 5, 2011) (citing Gold Kist, Inc. v. Laurinburg Oil
Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985)). Federal Rule
of Civil Procedure 4 provides that to serve an individual
defendant within the United States, a plaintiff may follow
"state law for serving a summons ... in the state where
the district court is located or where service is made."
Fed.R.Civ.P. 4(e)(1). Pursuant to New Jersey law, "[i]f
service cannot be made by any of the modes provided by [the
relevant] rule, any defendant may be served as provided by
court order, consistent with due process of law." NJ.
Ct. R. 4:4-4(b)(3). As discussed, the Court authorized
alternate service here because Defendants' whereabouts
were unknown. Accordingly, Defendants were served pursuant to
the Court-approved methods of service, which included service
via email as to all Defendants, in addition to telephoning
one Defendant and providing additional notice to another
Defendant via Linkedln. D.E. 9.
pleads that two Defendants are citizens of New York, three
are Delaware citizens, and Defendant John Doe 6 a/k/a Abraham
Austin is a citizen of Nigeria. Compl. ¶¶ 9-14. The
Court assumes that the Defendants who are citizens of New
York and Delaware are physically located within the United
States. Consequently, service was proper as to these
Defendants. Plaintiff, however, pleads no facts as to John
Doe 6's physical whereabouts. Given the fact that John
Doe 6 is a citizen of Nigeria, the Court assumes that he is
not physically located in the United States. Accordingly,
John Doe 6 could not be served pursuant to Rule 4(e)(1)
because it only applies to service on individuals who are
physically present in the country.
4(f) governs service of an individual in a foreign country.
An individual located outside of the United States may be
served pursuant to an "internationally agreed means of
service that is reasonably calculated to give notice, such as
those authorized by the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents."
Fed.R.Civ.P. 4(f)(1). Nigeria is not a party to an
international service of process treaty such as the Hague
Convention on the Service Abroad of Judicial and
Extrajudicial Documents. See Mada, Edozie & Madu,