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Closeout Group!, Inc. v. Venator Electronics Sales and Service

August 6, 2009

THE CLOSEOUT GROUP!, INC., PLAINTIFF,
v.
VENATOR ELECTRONICS SALES AND SERVICE, LTD. AND CHRISTOPHER PAUL-DUDDY, DEFENDANTS.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

Defendant Christopher Duddy filed a Notice of Motion in this Court seeking to set aside a default judgment entered against him after Duddy failed to respond to Plaintiff's Complaint. For the following reasons, Duddy's motion is denied.

I. BACKGROUND

The Complaint in this case was filed on December 17, 2007 and included, as to Duddy, a single claim of negligent misrepresentation, related to the sale of over 19,000 defective humidifiers. (Compl. ¶¶ 115-21.) The humidifiers, which were represented as primarily "shelf pulls" in "first quality condition," arrived with many either not in boxes or in damaged boxes. (Id. ¶¶ 7, 24 & 39.) When the boxes were opened, many were found to be broken, used, or otherwise defective. (Id. ¶¶ 40-42.) Venator refused to accept the return of the humidifiers or to issue a refund to Closeout. (Id. ¶ 45.) Duddy failed to respond to Plaintiff's attempts to contact him. (Id.)

Duddy, a resident of Ontario, Canada, also did not respond to the Complaint and a default judgment was entered against him on March 13, 2008. A judgment in the amount of $232,543.25 was subsequently entered on August 15, 2008. Plaintiff's Canadian counsel filed an Application, on November 6, 2008, in the Ontario Superior Court of Justice to enforce this judgment. (Pl.'s Resp, to Def.'s Notice of Mot. [Pl.'s Resp.] Ex. B [Dante Aff.] ¶ 11.) Defendant was served in the Canadian action on or about November 26, 2008. (Def.'s Notice of Mot. [Def.'s Mot.] Ex. A [Christopher Duddy Aff.] ¶ 48.)

Approximately seven months later, on June 18, 2009, Defendant filed a Notice of Motion in this Court seeking to set aside the default judgment on the grounds that he was not properly served with the Complaint in this action and that the claim against him is without merit. (Def.'s Mot at 2.) The Court subsequently informed the parties that it would interpret this filing as a pro se motion to set aside the default judgment.

In support of his motion, Duddy filed his own affidavit and that of his wife, Nancy Paul Duddy. Plaintiff avers that Duddy was served at his residence on February 8, 2009. Duddy contends that he and his wife were separated at this time. (Christopher Duddy Aff. ¶ 49.) Nancy Duddy likewise attests that she and Christopher were separated from January 7, 2009 through April 15, 2009 and that during this period Christopher did not reside at the residence where service allegedly occurred.*fn1 (Def.'s Mot. Ex. B [Nancy Duddy Aff.] ¶ 2.)

The first attempt at service occurred on January 8, 2008, the day after the couple's separation allegedly began. (Pl.'s Resp. Ex. A [Process Server's Aff.] ¶ 6.) The process server noted a vehicle registered to Christopher in the driveway, knocked on the door, and was greeted by a middle-aged woman who stated that she did not know Christopher's whereabouts. (Id.) The process server returned on February 6, 2008 and observed two vehicles registered to Christopher in the driveway. (Id. ¶ 7). He was greeted by a man he believed to be Christopher, but who refused to identify himself or state where Christopher was. A third service attempt occurred on February 8, 2008, at which time one of Christopher's vehicles was located in the driveway and the same middle-aged woman answered the door. (Id. ¶ 8.) She refused to identify herself and, when told by the process server that he had documents for Christopher or Nancy, told him to leave them on the door step. (Id.) The process server did so and left, noticing as he was leaving that Christopher's other vehicle was pulling into a neighboring driveway. (Id.) As the process server drove away he observed this vehicle exit the other driveway and enter the Duddy's driveway. (Id.) The Summons was returned executed on February 12, 2008. Contrary to this account, Duddy and his wife contend that no documents were ever left at the residence. (Christopher Duddy Aff. ¶ 49, Nancy Duddy Aff. ¶ 11.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 60 permits a court, upon motion, to set aside a judgment by default for reasons including that the judgment is void. FED. R. CIV. P. 60(b)(4). "As a general matter... the entry of a default judgment without proper service of a complaint renders that judgment void." United States v. One Toshiba Color Television, 213 F.3d 147, 156 (3d Cir. 2000). "[A] motion under Rule 60(b) must be made within a reasonable time...." FED. R. CIV. P. 60(c).

Trial courts possess discretion in determining whether to set aside a judgment, but, upon receiving a timely motion to set aside, must consider three factors: "(1) whether the plaintiff will be prejudiced if the default is lifted; (2) whether the defendant has a meritorious defense; and (3) whether the default was the result of the defendant's culpable conduct." Zawadski de Bueno v. Bueno Castro, 822 F.2d 416, 419-20 (3d Cir. 1987) (citation omitted).

III. ANALYSIS

A. Defendant was Properly Served

Christopher contends that he was not properly served with the Complaint in this action. Specifically, he asserts that no documents were ever left at his residence and that he was separated from his wife at the time. (Christopher Duddy Aff. ¶ 49.) His affidavit declares that "the individual arrived after dark did not identify himself and presented himself as familiar with family members." (Id.) Nancy Duddy's affidavit "confirm[s] thaton or about the 8th of February approximately 6:30 p.m. and after dark, a male approximately late twenties dressed in dark clothing with a hood [arrived at the Duddy residence]." (Nancy Duddy Aff. ¶ 4.) The man asked for Christopher; Nancy stated that ...


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