GEORGES v. MCELROY

• Court: District Court, D. New Jersey
• Decided: August 13, 2024
• Docket: 2:21-cv-17394
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY (973) 776-7700 CHAMBERS OF U.S. COURTHOUSE JAMES B. CLARK, III 50 WALNUT STREET, ROOM 2060 NEWARK, NJ 07102 UNITED STATES MAGISTRATE JUDGE

August 13, 2024

LETTER ORDER

Re: Georges v. McElroy Civil Action No. 21-17394 (EP)

Dear Counsel: Presently pending before the Court is a motion by Defendant Gregory McElroy (“Defendant”) to vacate the Clerk’s entry of default entered against him in this matter on February 2, 2024. See Dkt. No. 21. Plaintiff Ashley Georges (“Plaintiff”), proceeding in this matter pro se, opposes Defendant’s motion. See Dkt. No. 24. For the reasons set forth below, Defendant’s motion to vacate the entry of default [Dkt. No. 21] is GRANTED and Plaintiff’s motion seeking the entry of a default judgment against Defendant [Dkt. No. 17] is DENIED as moot. Pursuant to Federal Rule of Civil Procedure 55(c), a court “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c); see also Mrs. Ressler's Food Prods. v. KZY Logistics, LLC, 675 F. App'x 136, 139 (3d Cir. 2017). Adjudication of a motion to set aside default is left to the discretion of the district court. Bailey v. United Airlines, 279 F.3d 194, 204 (3d Cir. 2002). In considering whether to vacate default, a court should consider (1) whether the plaintiff will be prejudiced by a vacatur of default, (2) whether the defendant has a meritorious defense, and (3) whether the defendant's culpable conduct led 1 also Sourcecorp Inc. v. Croney, 412 F. App'x 455, 459 (3d Cir. 2011). The United States Court of Appeals for the Third Circuit has long disfavored defaults and default judgment, preferring “doubtful cases to be resolved in favor of the party moving to set aside the default .

. . ‘so that cases may be decided on their merits.’” U.S. v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194-195 (3d Cir. 1984) (quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245 (3d Cir. 1951)). The criteria for determining whether to set aside a default judgment or an entry of default are the same, but they are applied more liberally to an entry of default. Brittingham v. Camden City Police, No. 05-115, 2007 WL 1723403, at *1 (D.N.J. June 12, 2007). Plaintiff’s initial Complaint in this matter was filed with the Court on September 22, 2021. See Dkt. No. 1. The Court completed its screening of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) on May 31, 2022, and dismissed Plaintiff’s Complaint without prejudice. See Dkt. No. 4. Plaintiff filed an Amended Complaint on July 28, 2022. See Dkt. No. 6, Amended Complaint. According to Plaintiff’s Amended Complaint, Plaintiff, a state prisoner at South Woods State Prison, was well known “for helping

other prisoners with their legal work, as well as for filing grievances whenever his state or federal constitutional rights are threaten[ed] or violated by prison staff.” Amended Complaint at ¶ 4. Plaintiff alleges that Defendant, a corrections officer at East Jersey State Prison (“EJSP”), where Plaintiff was incarcerated during the time of the events underlying Plaintiff’s claims in this matter, in purported retaliation for Plaintiff’s filing of certain grievances against prison staff, improperly denied Plaintiff access to the law library. Id. at ¶ 18-20. The Court completed its screening of Plaintiff’s Amended Complaint on October 17, 2023, and allowed Plaintiff to proceed with his retaliation claim against Defendant in his individual capacity only. See Dkt. No. 11. Plaintiff’s remaining claims were dismissed. Id.

2 November 14, 2023, and Defendant’s answer was due on December 5, 2023. See Dkt. No. 16. Plaintiff filed a request for the entry of default as to Defendant on January 9, 2024, and default was entered on February 2, 2024. Plaintiff filed a motion seeking the entry of a default judgment on February 21, 2024.

See Dkt. No. 17. Counsel for Defendant filed a notice of appearance in this matter on May 6, 2023 [Dkt. No. 18] and Defendant’s present motion to vacate the entry of default was filed on May 20, 2024 [Dkt. No. 21]. Plaintiff filed his opposition to Defendant’s motion on June 11, 2024. See Dkt. No. 24. In support of his motion to vacate the entry of default, Defendant states that he “was on a leave of absence from approximately July 10, 2023 through January 3, 2024” and “was informed by a Department of Corrections staff member that [he] was issued a summons and was named as a defendant in the instant matter” during the week of November 14, 2023 when service was effectuated. Dkt. No. 22-1, Declaration of Gregory McElroy at ¶ 4-5. According to Defendant, prior to November 23, 2023, he “went to EJSP and signed a representation request” and for “reasons unknown to [Defendant], that representation request was not sent over to the Office of the Attorney General.” Id. at ¶ 6. The Office of the Attorney General

claims it “became aware of the Clerk’s entry of default” during the week of May 2, 2024. Dkt. No. 21-2, Declaration of Natalie Dennis at ¶ 10. In opposition to Defendant’s present motion, Plaintiff argues that he would be prejudiced if the entry of default was vacated “due to the time sensitivities” in this and other matters currently pending before this Court, that Defendant does not have meritorious defenses to Plaintiff’s claims, and that “Defendant knew he had to provide an answer with the specified time provided in the summons.” Dkt. No. 24 at ¶¶ 4, 5, 8. Given Rule 55’s liberal standard, the Court is satisfied that there is good cause to vacate the entry of default against Defendant. First, Plaintiff will suffer no real prejudice if default is vacated. Plaintiff may

3 that relevant evidence has been rendered unavailable in the very brief time that Defendant’s answer has been delayed. Secondly, Defendant has articulated several defenses to Plaintiff’s claims, including that Defendant is entitled to qualified immunity. Finally, although Defendant did indeed fail to timely respond

to Plaintiff’s Complaint, there is no evidence that he committed culpable conduct by submitting an ultimately unfulfilled representation request. Although Defendant has not provided a thorough explanation as to the breakdown in the process by which he was to be assigned counsel by the Office of the Attorney General, Plaintiff has put forth no evidence that Defendant acted willfully to ignore the Summons and Complaint. Based on the foregoing, the Court finds good cause to vacate the entry of default. Accordingly, Defendant’s motion to vacate the entry of default [Dkt. No. 21] is GRANTED and Plaintiff’s motion for the entry of a default judgment [Dkt. No. 17] is DENIED as moot. Defendant shall file and serve his answer within fourteen (14) days from the date of this Order.

IT IS SO ORDERED.

s/ James B. Clark, III JAMES B. CLARK, III United States Magistrate Judge