BART DOE v. THE CITY OF JERSEY CITY BOARD OF EDUCATION

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF MARTIN LUTHER KING COURTHOUSE

SUSAN D. WIGENTON 50 WALNUT ST.

UNITED STATES DISTRICT JUDGE

NEW 97A 3R -6K 45, -N 5J 9 00 37 101

April 18, 2022

Michael Kalmus, Esq.

15 Boland Drive

West Orange, NJ, NJ 07052

Counsel for Plaintiff Bart Doe

Cherie L. Adams

Adams, Gutierrez & Lattiboudere, LLC

1037 Raymond Blvd.

Suite 900

Newark, NJ 07102

Counsel for Defendant The City of Jersey City Board of Education

LETTER OPINION FILED WITH THE CLERK OF THE COURT

Re: Bart Doe v. The City of Jersey City Board of Education, et al.

Civil Action No. 21-20223 (SDW) (MAH)

Counsel:

Before this Court is Defendant The City of Jersey City Board of Education’s (“Defendant”)

Motion to Vacate Default entered against it on February 8, 2022 (D.E. 10.) This Court, having

considered the parties’ submissions, having reached its decision without oral argument pursuant

to Federal Rule of Civil Procedure (“Rule”) 78, and for the reasons discussed below, grants

Defendant’s motion. Further, because this Court grants Defendant’s Motion, (D.E.10), Plaintiff’s

Motion for Default Judgment, (D.E. 8) is rendered moot and is therefore denied.

DISCUSSION

A. Standard of Review

Rule 55(c) provides that a court may “set aside an entry of default for good cause . . . .”

When determining whether to vacate a default, a court must consider: “(1) whether the plaintiff

will be prejudiced; (2) whether the defendant has a meritorious defense; and (3) whether the default

was the result of the defendant’s culpable conduct.” Gold Kist, Inc. v. Laurinburg Oil Co., 756

F.2d 14, 19 (3d Cir. 1985) (citing Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984); United

States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984); Gross v. Stereo

Component Systems, Inc., 700 F.2d 120, 122 (3d Cir. 1983); Feliciano v. Reliant Tooling Co., 691

F.2d 653, 656 (3d Cir. 1982); Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982)); see also

Mettle v. First Union Nat’l Bank, 279 F. Supp. 2d 598 (D.N.J. 2003). “A decision to set aside the

entry of default pursuant to Fed. R. Civ. P. 55(c) . . . is left primarily to the discretion of the district

court.” $55,518.05 in U.S. Currency, 728 F.2d at 194 (citing Tozer v. Charles A. Krause Milling

Co., 189 F.2d 242, 244 (3d Cir. 1951)). Moreover, the Third Circuit “does not favor entry of

defaults or default judgments,” and prefers cases to be decided on the merits. Id. at 194–95.

B. There is Good Cause to Vacate Entry of Default

On November 24, 2021, Plaintiff filed a Complaint alleging that a teacher, “Mr. Fisher”,

in Defendant’s district sexually abused Plaintiff in or about 1971 and 1972. (D.E. 1 at ¶ 1.)

Plaintiff set forth several claims against Defendant, including Vicarious Liability (Respondent

Superior); Negligence/Gross Negligence; Negligent Supervision and Training; and Negligent

Retention. (D.E. 1 ¶¶ at 59–143.) Plaintiff requested relief including “compensatory damages, . .

. punitive damages, . . . interest and costs in an unspecified amount, plus costs, disbursements,

reasonable attorneys’ fees, interest, and any such other, different, or further legal, equitable,

injunctive, or declaratory relief as the Court deems just, proper, or necessary.” (D.E. 1 at 23.) On

February 2, 2022, Plaintiff filed an Affidavit of Service confirming that Defendant was served a

Summons and Complaint on December 9, 2021, and Defendant’s answer was due on December

30, 2021. (D.E. 6.) On February 7, 2022, Plaintiff filed an Ex Parte Motion for Entry of Default.

(D.E. 7.) After the Clerk of Court entered Default as to Defendant on February 8, 2022, Plaintiff

filed a Motion for Default Judgment on February 10, 2022. (D.E. 8.) Defendant’s counsel filed a

Notice of Appearance, (D.E. 9), and a Motion to Vacate Default, (D.E. 10), on February 23, 2022.

The parties then completed timely briefing on both Motions. (See D.E. 11, 12, 15, 16, 17.)

In support of the Motion to Vacate Default, Defendant’s counsel notes that the Jersey City

Board of Education (“JCBOE”), a public entity, forwarded the Summons and Complaint to its

insurance carrier soon after being served, but the insurance carrier did not assign counsel until

February 2, 2022. (D.E. 10-1 at 2.) Defendant’s counsel then contacted Plaintiff’s counsel to

request an extension for time to answer, but the default had already been entered. (Id.)

Defendant’s counsel then contacted Plaintiff’s counsel and requested consent to a proposed order

to vacate the default, but Plaintiff’s counsel declined. (Id.)

In opposition to the Motion to Vacate Default, Plaintiff’s counsel confirms that

Defendant’s counsel reached out several times shortly after the Clerk’s Entry of Default, but

Plaintiff’s counsel declined to consent to withdraw the Entry of Default or the pending Motion for

Default Judgment. (D.E. 11 ¶¶ at 17–19.)

Given Rule 55’s liberal standard, this Court is satisfied that there is good cause to vacate

the entry of default against Defendant. First, Plaintiff will suffer no real prejudice if the order is

vacated. As Defendant argues, Plaintiff may still pursue his claims, and the evidence—which

pertains to events that allegedly occurred five decades ago—likely did not evanesce in the very

brief time that Defendant’s answer was delayed. Second, Defendant has articulated several

defenses to Plaintiff’s claims. Considering the significant passage of time between the alleged

abuse and the filing of the claim, and the fact that even “Plaintiff is currently unable to recall

Defendant Fisher’s full name,” (D.E. 1 at ¶ 7), Defendant will likely gather additional facts during

discovery to further support its meritorious defenses. Finally, although Defendant clearly did not

meet the required deadline for answering the Complaint, there is no evidence that Defendant

committed culpable conduct by sending the Complaint to its insurance company and awaiting

assignment of counsel. Counsel for both parties agree that shortly after Defendant’s counsel was

appointed by its insurer, counsel reached out to Plaintiff’s counsel to request the professional

courtesy of additional time to answer, which is not evidence of bad faith, but is rather a relatively

common occurrence. The procedure Defendant follows in response to summonses can surely be

improved upon so that any future summonses can be addressed in a timely manner by counsel.

Nevertheless, Plaintiff has put forth zero evidence that Defendant acted willfully to ignore the

Summons and Complaint, and Defendant has established that it took steps to secure counsel and

address the Summons and Complaint.

In sum, there is good cause for this Court to vacate the Entry of Default. Plaintiff has not

been prejudiced by Defendant’s minor delay in answering the Complaint, Defendant has put forth

adequate meritorious defenses, and there is no evidence of culpable conduct or bad faith by

Defendant. Therefore, in accordance with this Court’s preference for adjudicating claims on the

merits, the circumstances support granting Defendant’s motion. See $55,518.05 in U.S. Currency,

728 F.2d at 194–95. Because the Entry of Default is vacated, Plaintiff’s Motion to Enter Default

Judgment is denied as moot.

CONCLUSION

For the reasons set forth above, Defendant’s Motion to Vacate, (D.E. 10), is GRANTED.

Plaintiff’s Motion to Enter Default Judgment, (D.E. 8), is DENIED. The Court grants Defendant

twenty (20) days from the filing of this Order to file an answer, motion, or other responsive

pleading. An appropriate order follows.

___/s/ Susan D. Wigenton_____

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc: Parties

Michael A. Hammer, U.S.M.J.