United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
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).
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.
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).
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.).
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).
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.).
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.).
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.
of process appears to have been defective in this case