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Insurance Company of Greater New York A/S/O Altman v. Matthew Cobb and Crystal Lopez

June 29, 2012

INSURANCE COMPANY OF GREATER NEW YORK A/S/O ALTMAN MANAGEMENT COMPANY AND CHAMBERS RIDGE ASSOCIATES, L.P. D/B/A ASPEN HILL APARTMENTS,
PLAINTIFF :
v.
MATTHEW COBB AND CRYSTAL LOPEZ, DEFENDANTS



The opinion of the court was delivered by: (Chief Judge Kane)

MEMORANDUM ORDER

Before the Court are two motions for default judgment: one as to Defendant Crystal Lopez (Doc. No. 12), and one as to Defendant Matthew Cobb (Doc. No. 24). For the reasons set forth below, the Court will grant the motions and enter default judgment against Defendants Cobb and Lopez.

I. BACKGROUND

On October 11, 2011, Plaintiff initiated this diversity action by filing a complaint against Defendants Cobb and Lopez sounding in negligence and breach of contract, stemming from a fire at an apartment complex. (Doc. No. 1.) In its complaint, Plaintiff alleges that Defendants occupied a unit at Aspen Hills Apartments in Harrisburg pursuant to a lease agreement, and that a fire originated in their unit because their unsupervised minor child was playing with a cigarette lighter. (Id. ¶¶ 6-7.) Plaintiff, the apartment complex's insurer, alleges that the fire would not have started if the minor child were properly monitored and did not have access to a lighter. (Id. ¶ 8.) Plaintiff further alleges that the fire caused major damage to the building in Aspen Hill.

(Id. ¶ 9.)

On February 7, 2012, after being granted an extension of time to perfect service, Plaintiff filed an affidavit of service as to Defendant Lopez, asserting that it served a summons and complaint on Michael Davis, a competent co-resident of Defendant Lopez. (Doc. No. 9.) The Clerk of Court entered default as to Defendant Lopez on March 2, 2012. (Doc. No. 11.) On June 7, 2012, after being granted an extension of time to perfect service and leave to serve by publication, Plaintiff filed two affidavits of service by publication as to Defendant Cobb: one from The Dauphin County Reporter, and one from The Patriot News. (Doc. Nos. 20, 21.) The Clerk of Court entered default as to Defendant Cobb on June 21, 2012. (Doc. No. 23.)

To date, Defendants have failed to plead or otherwise defend themselves in this action. Plaintiff filed a motion for default judgment as to Defendant Lopez on March 19, 2012 (Doc. No. 12), and a motion for default judgment as to Defendant Cobb on June 25, 2012 (Doc. No. 24).

II. LEGAL STANDARD

Rule 55(b) of the Federal Rules of Civil Procedure provides for entry of default judgment against a defendant who has not appeared and who is neither a minor nor an incompetent person. Fed. R. Civ. P. 55(b). Entry of default does not entitle a claimant to default judgment as matter of right. 10 James Wm. Moore et al., Moore's Federal Practice § 55.31 (Matthew Bender ed. 2010). Even when a party has defaulted and all of the procedural requirements for a default judgment are satisfied, the decision to either enter default judgment or refuse to enter default judgment rests in the discretion of the district court. See Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987). In undertaking this evaluation, the Court must consider: (1) whether the plaintiff will be prejudiced if the default is denied; (2) whether the defendant has a meritorious defense; and (3) whether the defaulting defendant's conduct is excusable or culpable. See, e.g., Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000) (citing United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984)). However, when a defendant has failed to appear or respond in any fashion to the complaint, this analysis is necessarily one sided; entry of default judgment is typically warranted in such circumstances at least until the defendant comes forward with a motion to set aside the default judgment pursuant to Rule 55(c). As the Third Circuit has explained:

In most instances where a party's right to prosecute or defend would be terminated as a sanction, the moving party has the burden of creating a record showing the appropriateness of this ultimate sanction and the district court has the responsibility of making a determination on that issue in light of considerations like those articulated in Poulis. When a defendant fails to appear and perhaps under other circumstances covered by Rule 55, the district court or its clerk is authorized to enter a default judgment based solely on the fact that the default has occurred. Even in those situations, however, consideration of Poulis type factors is required if a motion to lift the default is filed under Rule 55(c) or Rule 60(b) and a record is supplied that will permit such consideration.

Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 177 n.9 (3d Cir. 1990).

III. DISCUSSION

In the instant matter, the factors discussed in Chamberlain weigh in favor of granting default judgment. See Chamberlain, 210 F.3d at 164. First, if default is denied, Plaintiff will be prejudiced by Defendants' failure to plead or otherwise defend themselves in this matter in that litigation in this matter will not be able to proceed without the participation of Defendants. As to the second and third factors, because Defendants have failed to participate in the litigation process in any way, the Court cannot speculate as to whether Defendants have a litigable defense, or whether Defendants' default is due to culpable conduct. Thus, entry of default judgment is warranted in this case.

Because default judgment will be entered, "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990) (quoting 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure ยง 2688 at 444 (2d ed. 1983)). The allegations in the complaint, taken as true, are ...


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