Opinion
CIVIL NO. 15-244(NLH/JS)
08-11-2016
JOHN E. REARDON, Plaintiff, v. VINCENT SEGAL, et al., Defendants.
Appearances: JOHN E. REARDON 1 JOANS LANE BERLIN, NJ 08009 Appearing pro se BRIAN P. WILSON OKEANO NOEL ANSEL BELL STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL DIVISION OF LAW 25 MARKET STREET P.O. BOX 116 TRENTON, NJ 08625 On behalf of defendants
MEMORANDUM OPINION & ORDER
Appearances: JOHN E. REARDON
1 JOANS LANE
BERLIN, NJ 08009
Appearing pro se BRIAN P. WILSON
OKEANO NOEL ANSEL BELL
STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL
DIVISION OF LAW
25 MARKET STREET
P.O. BOX 116
TRENTON, NJ 08625
On behalf of defendants HILLMAN , District Judge
This matter having come before the Court on plaintiff's motions "for an Order Setting Down a Trial Date as to Damages for this Lawsuit" [38] and "to Compel Clerk to enter Default and Default judgment and to compel answers and discovery" [43]; and
With regard to motion [38], plaintiff arguing that because two of the defendants, "Klein and Segal," are in default by failing to respond to his lawsuit, they waive all of their "objections and defenses," and the Court should "set down a date for trial as to damages" against these two defendants; and
With regard to motion [43], plaintiff arguing that defendants have waived their objections as to the sufficiency of service of process; and
The Court having considered both of plaintiff's motions, as well as all the other submissions plaintiff has filed in further support of his motions [44, 47, 48, 49, 50]; and
The Court finding that plaintiff's motions must be denied because plaintiff has not demonstrated that he has properly served any of the defendants, including "Klein and Segal," in accordance with Fed. R. Civ. P. 4(e)(1) (an individual may be served in a judicial district of the United States by following state law for serving a summons or by personal service) and N.J. Ct. R. 4:4-4(a)(1) (providing that service is proper when the summons and complaint are personally served on the defendant, and that a defendant is not required to serve a responsive pleading until he or she is properly served); and
Plaintiff states that he sent the Summons and Complaint by "simultaneously mailing same, via certified and regular mail, to all defendants all of which were not returned." (Docket No. 43, at 3, ¶ 3).
The Court further finding that judgment cannot be entered against any party, by way of default or trial, who has not been property served, see Grand Entm't Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993) ("A district court's power to assert in personam authority over [a defendant] is dependent not only on compliance with due process but also on compliance with the technicalities of Rule 4."); and
The Court further finding that defendants have not waived their right to challenge the sufficiency of service, cf., Grand Entm't Grp., 988 F.2d at 492 ("Notice to a defendant that he has been sued does not cure defective service, and an appearance for the limited purpose of objecting to service does not waive the technicalities of the rule governing service."); McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 194 (3d Cir. 1998) ("[I]f a Rule 12 motion is made and the defendant omits its objection to the timeliness or effectiveness of service under Rule 12(b)(5), that objection is waived.").
Therefore,
IT IS on this 11th day of August, 2016
ORDERED that plaintiff's motions "for an Order Setting Down a Trial Date as to Damages for this Lawsuit" [38], and "to Compel Clerk to enter Default and Default judgment and to compel answers and discovery" [43] be, the same hereby are, DENIED.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J. At Camden, New Jersey