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Sellow v. Nwachukwu

United States District Court, D. New Jersey

November 20, 2019

DAVID SELLOW, Plaintiff,
v.
IHUOMA NWACHUKWU, Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on Defendant's Motion to Set Aside an Entry of Default (ECFNo. 13). This Court has federal question jurisdiction to hear this case. For the reasons stated herein, Defendant's motion is granted and the entry of default is set aside.

         I

         Plaintiff, David Sellow, is a pro se state prisoner who is presently confined at New Jersey State Prison in Trenton, New Jersey. (Compl. ¶ lb, ECF No. 1). Plaintiff has filed a lawsuit against Defendant, Dr. Ihuoma Nwachukwu, a physician at New Jersey State Prison and an employee of the State of New Jersey through Rutgers University Correctional HealthCare. (See Compl.; Aff. of Ihuoma Nwachukwu ¶ 1, ECF No. 13-2).

         Plaintiff brought his lawsuit under 42 U.S.C. § 1983, alleging that Defendant failed to provide him with post-surgical medical care, delayed in sending him to the hospital after he fell in his housing unit, and has refused to adequately treat his medical needs. (Compl. ¶¶ 6-24). Plaintiff claims Defendant's actions and omissions violate the Eighth Amendment and the New Jersey Tort Claims Act and seeks damages, injunctive relief, and a declaratory judgment. (Compl. VIII, "Claims for Relief). Plaintiff has sued Defendant in her individual capacity.

         Plaintiff filed his Complaint on September 12, 2018. (See Compl.). On January 16, 2019, after Defendant did not file an Answer to Plaintiffs Complaint, Plaintiff filed a request for default. (Request for Entry of Default, ECF No. 8). In Plaintiff's default request, he claims that he properly served Defendant with a copy of the Summons and Complaint on December 3, 2018. (Id. at ¶ 2). On January 16, 2019, the Clerk of the Court filed an Entry of Default for Defendant's failure to plead or otherwise defend the action. On April 1, 2019, Plaintiff filed a Motion to Enter Default against the Defendant. (ECF No. 9).

         Defendant, however, claims that she was never served with the Summons and Complaint. (Nwachukwu Aff. ¶ 5). She states that she first learned about the lawsuit in late September 2019 when the Rutgers Office of Risk Management informed her about Plaintiff's Complaint. (Id. at ¶ 6). Defendant avers that she had absolutely no knowledge of the case before this time. (Id.).

         Moreover, Defendant's counsel, Michael J. Lunga, Esq., wrote to the Court and indicated that the State of New Jersey's Attorney General's Office assigned him to represent Defendant on October 3, 2019. (Letter to the Court from Michael J. Lunga, Oct. 3, 2019, ECF No. 12). According to Mr. Lunga, the Assistant Attorney General in charge of the lawsuit informed Mr. Lunga that it was not until late September 2019 that he (the Assistant AG) was first informed that there was a lawsuit and that a default had been entered against Defendant. (Certification of Michael J. Lunga ("Lunga Cert."), ECF No. 13-3).

         In further support of Defendant's contention that she was unaware of the lawsuit until relatively recently, she has submitted copies of the United States Marshals Service "Process Receipt and Return" as well as the Summons, which includes the "Return of Service" form. (Def.'s Ex. A, ECF No. 13-2). The Process Receipt and Return form indicates that the individual who allegedly served Defendant was one "Holland," who appears to be a U.S. Marshal or Deputy. (Id.). On the same page of the form, the "Date of Service" allegedly indicates that Defendant was served on "12/03/18" at "11:30 a.m." (Id.). In the "Remarks" section on the same page, there is a handwritten note that states, "11/22/18 not available until 11/26/18." (Id.).

         The Summons contains the Federal Rule of Civil Procedure 4(a) summons requirements, including the name of the court and the parties, is signed by the clerk and bears the District Court's seal, and notifies Defendant that she has 21 days after service in which to respond or risk a default judgment entered against her. (Id.). Notably, the "Return of Service" page, which typically describes the details of service, is completely blank. (Id.).

         Because Defendant claims that she was not served with the Summons and Complaint in this lawsuit, she requests that the Court set aside the entry of default against her and allow her to file an Answer. (Lunga Cert. ¶ 14). Plaintiff did not file an opposition to Defendant's motion, but indicated during oral argument that he does not oppose Defendant's motion.

         II

         Service of Process

         Service of process appears to have been defective in this case because ...


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