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Clark v. Foley

September 12, 2008

MARY ANN CLARK, INDIVIDUALLY AND AS ADMINISTRATRIX FOR THE ESTATE OF DR. JOHN J. YELENIC, JUDGE SYLVIA H. RAMBO PLAINTIFF
v.
KEVIN FOLEY, MICHELE YELENIC, BRIAN BONO, JAMES FRY, DANIEL ZENISEK, BRAD SHIELDS, DEANA KIRKLAND, JEFFREY MILLER, JAMES FULMER, AND ALLISON JACOBS, DEFENDANTS.



MEMORANDUM

This lawsuit arises out of the shooting death of Dr. John Yelenic in Indiana County, Pennsylvania. Yelenic's niece, Mary Ann Clark, brings this action on behalf of herself and as administratrix of John Yelenic's estate. Two issues are currently before the court: (1) whether default judgment should be granted against Defendants Michelle Yelenic and Kevin Foley for failure to file a timely response to the complaint; and (2) whether this case should be transferred to the United States District Court for the Western District of Pennsylvania for the convenience of the parties and witnesses pursuant to 28 U.S.C. § 1404. For the reasons that follow, default judgment will not be granted, and this case shall be transferred to the United States District Court for the Western District of Pennsylvania.

I. Background

A. Facts

The facts are drawn from Plaintiff's complaint, and taken as true for the purpose of deciding this motion. In 2004, Dr. John Yelenic, a dentist in Blairsville, Pennsylvania, separated from his wife Michelle Yelenic. The same year, Michelle Yelenic started dating Kevin Foley, a Pennsylvania State Police ("PSP") officer stationed at the Indiana PSP barracks, who eventually moved in with her. Throughout the separation, the Yelenic's relationship remained acrimonious, and Michelle Yelenic frequently demanded money from her estranged husband. In 2006, Dr. Yelenic filed for divorce. On April 13, 2006, just before the final divorce papers were to be signed, Dr. Yelenic was murdered, allegedly by Foley, with the assistance of Michelle Yelenic and Brian Bono, another PSP officer.

Foley has been arrested for Dr. Yelenic's murder and is currently incarcerated and awaiting trial in Indiana County. Plaintiff alleges that before the murder, Foley made numerous threats to kill Dr. Yelenic, while in the presence of fellow PSP officers stationed at the Indiana PSP barracks. According to Plaintiff, the murder could have been avoided if the PSP officers who heard the threats had reported them. Plaintiff further alleges that the PSP intentionally hampered the investigation of Dr. Yelenic's murder.

All of the events just described took place in Indiana County, which is located within the Western District of Pennsylvania. Moreover, all but one of the parties reside in Indiana County, and all of the relevant physical evidence is located there as well. The only defendant with any connection to the Middle District of Pennsylvania is PSP Commissioner Jeffrey Miller. Plaintiff alleges that Miller, as a member of PSP leadership, established a pattern and practice of surreptitiously breaking the law, "for example, committ[ing] felonies in covering up evidence of his high speed driving across the state of such an extreme measure that it endangered the lives of other persons." (Doc. 1 ¶ 45.) Plaintiff does not explain how this alleged custom is related to the instant litigation.

B. Procedural History

On April 13, 2008, Plaintiff initiated this law suit by filing a complaint in the United States District Court for the Middle District of Pennsylvania. (Doc. 1.) Plaintiff names as defendants Kevin Foley, Michelle Yelenic, and Brian Bono. Plaintiff also names as defendants James Fry, Daniel Zenisek, Brad Shields, and Deana Kirkland, all PSP officers who allegedly worked with Foley prior to the killing, or who were responsible for investigating his death. Additionally, Jeffrey Miller, PSP commissioner is named as a defendant. Summons were issued on April 14, 2008.

Numerous motions have been filed in this case, including motions to dismiss (Docs. 9, 19, 34), to stay (Docs. 10, 20, 46), for default judgment (Docs. 23, 24) and to set aside default (Doc. 35). All motions have been fully briefed and are ripe for disposition. Additionally, upon suggestion by Michelle Yelenic that this case should have been filed in the United States District Court for the Western District of Pennsylvania, this court directed all parties to show cause why this action should not be transferred to the Western District in the interest of justice and for the convenience of the parties. That issue is also ripe for disposition.

II. Discussion

The court will first address Plaintiff's motions for default judgment against Defendants Foley and Yelenic before considering whether this case should be transferred to the United States District Court for the Western District of Pennsylvania.

A. Default Judgment

Plaintiff now seeks default judgment against Michelle Yelenic and Kevin Foley for failure to plead or otherwise defend this action. A defendant who has been personally served is required to file a responsive pleading or defense within twenty days of service. Fed. R. Civ. P. 12(a)(1)(A). Federal Rule of Civil Procedure 55 sets forth the two step procedure and requirements for default judgment. First, a party's default may be entered by the Clerk of Court "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise." Fed. R. Civ. P. 55(a). Second, once notice of a party's default is entered, default judgment may be entered by the Clerk where the plaintiff's claim is for a sum certain, see Fed. R. Civ. P. 55(b)(1), or by the court in all other cases, see Fed. R. Civ. P. 55(b)(2). "For good cause shown the court may set aside an entry of default and, if judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Fed. R. Civ. P. 55(c). Here, the Clerk of Court has entered Foley and Yelenic's default, but no judgment has been entered, and both defendants have moved to set aside entry of default.

Default judgment is a drastic remedy which is disfavored by the courts. Whenever it is reasonably possible, cases should be decided on the merits. Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984). In the Third Circuit, "[t]hree factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant's delay is due to culpable conduct." Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. ...


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