United States District Court, E.D. Pennsylvania
BARCLAY SURRICK, J.
before the Court are pro se Defendant Gagandeep S.
Mangat, M.D.'s Motion to Dismiss Complaint (ECF No. 10)
and pro se Defendant Vimal H. Patel, M.D.'s
Motion to Dismiss Complaint (ECF No. 12). For the following
reasons, Defendants' Motions will be denied.
filed a Complaint in Confession of Judgment on May 15, 2019.
(Compl., ECF No. 1.) A copy of the Summons and Complaint were
served on Defendants Gagandeep S. Mangat, M.D. and Vimal H.
Patel, M.D. (“Moving Defendants”) on October 3,
2019, 141 days later. (ECF Nos. 5 & 6.) Moving Defendants
filed nearly identical motions to dismiss on October 15, 2019
(ECF Nos. 10 & 12), asserting that the Complaint should
be dismissed under Federal Rule of Civil Procedure 4(m),
which states in relevant part that:
If a defendant is not served within 90 days after the
complaint is filed, the court- on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). Plaintiff opposes the motions, arguing
that the ordinary service of process rules do not apply to
confession of judgment complaints. Plaintiff is correct.
Pennsylvania law, parties may, in certain circumstances,
create a contract with an automatic right to a money judgment
upon a party's default.” S&T Bank v.
Zokaites, No. 10-1748, 2011 WL 1298171, at *1 (W.D. Pa.
Mar. 31, 2011). This is known as a confessed judgment, which,
“by its very nature, is a final judgment under
Pennsylvania law.” Id. at *2 (citing Pa. R.
Civ. P. 2956). “Once a complaint in confession of
judgment is filed, the prothonotary is required to enter
judgment in conformity with the confession. A confession of
judgment is then a very powerful tool because it places the
power to enter an immediate judgment in the hands of one
party to a contract.” Id. at *1 (internal
citation omitted). Federal courts may entertain confessions
of judgment on the basis of diversity jurisdiction. See
id. at *2. Plaintiff's Complaint alleges diversity
jurisdiction. (Compl. ¶¶ 3-8.)
right to enter judgment upon a confession contained in an
instrument is a common-law right which may be exercised
without the necessity of suit, i.e., service of process,
pleading and judicial determination.” FDIC v.
Steinman, 53 F.Supp. 644, 651 (E.D. Pa. 1943). With
regard to the interplay between this common law right and the
Federal Rules of Civil Procedure,
The Federal Rules of Civil Procedure do not include the
exercise of the contractual right to enter judgment by
confession. The agreement to confess judgment obviates
the necessity for a formal commencement of action, service of
process, pleading, a trial of the issues and judicial
determination thereof. An authorization to confess
judgment is in fact a waiver of the provisions of the
aforesaid Rules governing the steps taken through the
rendition of judgment as to the amount of the debt which is
due. Such a waiver is in no way incompatible with the Rules
which, to the extent they have not been waived, continue in
effect as to the Clerk's ministerial duty of recordation
or entry of the confessed judgment, and as to any post
judgment proceedings such as stay of enforcement, execution,
relief from judgment, appeal, etc.
Nat'l Leasing Corp. v. Williams, 80 F.R.D. 416,
418-19 (W.D. Pa. 1978) (emphasis added); accord
Beneficial Mutual Savings Bank v. Philippopoulos, No.
11-2348, 2012 WL 3235165, at *2 n.6 (E.D. Pa. Aug. 8, 2012).
In Philippopoulos, the defendant objected to
improper service of process of a confession of judgment
complaint. The court rejected the challenge, reasoning that
by authorizing the confession of judgment, the defendant
“waived her right to challenge entry of confessed
judgment based on lack of service, ” and
“requiring formal service of the Complaint would be
inconsistent with the essential purpose of the [confessed
according to the Complaint and agreements appended to the
Complaint, Moving Defendants similarly agreed to allow
Plaintiff to enforce the confessed judgments “without
prior notice or opportunity for a hearing.” (Compl.
Exs. H & I.) Moreover, as in Philippopoulos,
Moving Defendants do not claim that their waivers are invalid
or unenforceable. See 2012 WL 3235165, at *2.
Moving Defendants have waived their right to demand adherence
to the notice and service rules under ...