Opinion
Civil Action 21-CV-70J Re: ECF 63
09-20-2022
JAMIE MCVICKER, Plaintiff, v. DR. RITA COMACHO and DANIEL C. VITTONE, Defendants.
Stephanie L. Haines, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Plaintiff Jamie McVicker (“Plaintiff'), an inmate presently incarcerated at the State Correctional Institution at Houtzdale (“SCI-Houtzdale”), fded this pro se action pursuant to 42 U.S.C. § 1983 arising out of allegations that he was denied proper medical care. ECF No. 37. Presently before the Court is Plaintiff s Motion for Default Judgment against Defendant Daniel C. Vittone (“Vittone”). ECF No. 63. For the reasons that follow, the Motion for Default Judgment should be denied.
II. REPORT
A. PROCEDURAL BACKGROUND
Plaintiff began this action by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 1. After Plaintiff cured certain fling deficiencies, the Court granted Plaintiff s IFP Motion on July 27, 2021, and his Complaint was filed on the same date. ECF Nos. 10 and 12.
Defendants Dr. Rita Comacho (“Comacho”) and PrimeCare Medical Inc. (“PrimeCare”) filed their Answer to Plaintiffs Complaint on October 18, 2021. ECF No. 22. The Court then entered a Case Management Order, scheduling fact discovery to conclude by February 1, 2022. ECF No. 23.
Plaintiff moved for leave to amend his Complaint, which the Court granted. ECF Nos. 33 and 34. He filed his First Amended Complaint on December 30, 2021, in which he eliminated claims against PrimeCare and added Vittone as a defendant. ECF No. 37. Plaintiff identified Vittone as an eye doctor who provided medical care to Plaintiff while he was incarcerated at Somerset County Jail between June 2017 and August 2018. Id. at 2.
The Court subsequently ordered the United States Marshal to serve Vittone with a copy of the Amended Complaint, notice and request for waiver of service of summons, waiver of service of summons, and the Second Service Order. ECF No. 45.
On July 11, 2022, Plaintiff filed the instant Motion for Default Judgment against Vittone, arguing that default judgment should be entered because Vittone never filed a responsive pleading or otherwise defended this lawsuit. ECF No. 63 at 2.
On July 21, 2022, attorney Michael C. Hamilton (“Hamilton”) entered an appearance on behalf of Vittone. ECF No. 64. He then filed a response in opposition to the Motion for Default Judgment on July 25, 2022. ECF No. 66. In response, Hamilton states that he is entering an appearance for the express and limited purpose of asserting lack of proper service on Vittone. Id. ¶ 2. He informs the Court that Vittone passed away on May 23, 2021-before he was named as a defendant in this case. Id. ¶ 3. As a result, Hamilton argues, any Complaint against him is a legal nullity and there was no proper service. Id. ¶¶ 6-10. Based on this, Hamilton requests that the Court deny the Motion for Default Judgment.
B. LEGAL STANDARD
Federal Rule of Civil Procedure 55 sets forth the procedure for default judgment. First, if the party against whom judgment is sought failed to plead or otherwise defend against the Complaint, the party seeking judgment must seek entry of default by the Clerk. Fed.R.Civ.P. 55(a). Once default has been entered, a party may apply to the Court for a default judgment. See Husain v. Casino Control Comm'n, 265 Fed.Appx. 130, 133 (3d Cir. 2008) (citing Fed.R.Civ.P. 55(a)-(b)).
There is a “well-established policy of disfavoring default judgments and encouraging decisions on the merits.” Id. (quoting Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 981 (3d Cir. 1998)) (internal quotations omitted). The decision of whether to enter a default judgment is within the discretion of the trial court. In considering whether to enter default judgment, the Court may consider whether: “(1) a denial would prejudice the plaintiff; (2) the defendant appeared to have a litigable defense; and (3) the defendant's delay was caused by culpable conduct.” Id.
C. DISCUSSION
Upon review, the Court should deny the Motion for Default Judgment. The Court takes judicial notice of public records showing that Vittone pre-deceased Plaintiff s Amended Complaint. ECF No. 66-1. Because Vittone is deceased, he does not have the capacity to be sued. In re Asbestos Prods. Liab. Litig., 311 F.R.D. 152, 154 (E.D. Pa. 2015) (citing Adelsberger v. United States, 58 Fed.Cl. 616, 618 (2003) (providing that “a party must have a legal existence as a prerequisite to having the capacity to sue or be sued” and a “person who dies prior to filing suit is not a legal entity”)). Similarly, he also could not have been properly served. Therefore, default judgment is improper.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion for Default Judgment, ECF No. 63, be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appellate rights.