Opinion
Civil Action 21-1252
05-05-2022
LYNNE L. THOMPSON, Plaintiff, v. ALLEGHENY COUNTY DISTRICT ATTORNEY'S OFFICE; STEPHEN ZAPPALA, RICHARD BYERS, MAGISTRATE LINDA ZURCCO; RAYMOND BITAR; EUGENE F. RIAZZI, JR., and ANTHONY DELUCA, Defendants.
Arthur J. Schwab, District Judge
REPORT AND RECOMMENDATION
Re: ECF No. 26
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Presently before the Court is a Motion for Default Judgment for Raymond Bitar filed by Plaintiff Lynne Thompson (“Plaintiff”). ECF No. 26. For the reasons below, it is respectfully recommended that the Motion for Default Judgment be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiff's Complaint
Plaintiff Lynne Thompson (“Plaintiff”), a frequent litigator in this Court, commenced this pro se action on September 17, 2021, with the filing of a Complaint. ECF No. 1. While the Complaint is difficult to understand, it appears that Plaintiff challenges the constitutionality of her arrest, prosecution, and bond in a pending state court criminal proceeding.
In her Complaint, Plaintiff asserts claims against various defendants, including three magisterial district judges, the Allegheny County District Attorney's Office and several of its employees, and Bitar.
With respect to Bitar, she claims that he is an attorney who called her “sometime in May 2020.” ECF No. 1 at 8. She alleges:
This all started with Raymond Bitar, who is prejudice [sic], and acted like he was a judge by directing Lynne to come to his office and bring I.D. with her, to prove who she was, for she was not going to buy his brother-in-law's house. He also used intimidation and harassment by telling Lynne she better come to his office. The attorney for Lynne's company called him and he hung up on him, and would not return his call, once Lynne reported what Bitar said and what he was trying to do.Id. at 7.
As a result of Defendants' actions, she claims that she was placed in the Allegheny County Jail on a “bogus warrant” and was required to pay an attorney and bond. Id. at 9. She asserts claims against all Defendants for Abuse of Power; Falsity of Legal Documents; Lied Under Oath; Procedural Due Process; Intimidation; violation of 18 U.S.C. § 242 (deprivation of rights under color of law); Official Oppression; Loss of Equal Protection; Loss of Due Process; Abuse of Process; Malicious Prosecution; and Conspiracy. Id. at 3.
2. Motion for Default Judgment
On November 22, 2021, Plaintiff filed the instant Motion for Default Judgment and Brief against Bitar. ECF No. 26. In support of her Motion, she argues that she served a copy of “this within Civil Action” to Bitar by FedEx at his law office on September 17, 2021, and that service was accepted by his receptionist. Id. ¶ 1. Because Bitar had not yet entered his appearance, she contends that the Court should enter default judgment against him. Id. ¶¶ 2-3.
On December 6, 2021, counsel for Bitar entered his appearance. ECF No. 29. Bitar then filed a Response to the Motion to Default Judgment on December 17, 2021. ECF No. 35. Bitar argues that Plaintiff never properly served him, because mailing a copy of a complaint to an individual at his place of business is not proper service, there is no record she served a summons, and she has not submitted proof of service. Id. at 1-3. Bitar also notes that he is in his 80s, has been intensively treating for cancer, and he did not return the waiver of service of summons because he did not recognize the sender or subject, and he assumed he received it by mistake. Id. at 1.
On January 13, 2022, Plaintiff filed another “Motion to Ask for the Granting of Default Judgement,” which appears in substance to be a Reply in further support of her motion. ECF No. 39. She argues that “neglect” is not a defense to failing to respond, and she reiterates that she served this action on Bitar.
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.
“A finding that default judgment is appropriate, however, is not the end of the inquiry.” Martin v. Nat'l Check Recovery Servs., No. 12-1230, 2016 WL 3670849, at *1 (M.D. Pa. July 11, 2016). Before entering default judgment, the Court also must determine whether the “unchallenged facts constitute a legitimate cause of action.” Id. In doing so, “the well-pleaded, factual allegations of the complaint . . . are accepted as true and treated as though they were established by proof.” Easley v. Hollibaugh, No. 1:19-cv-2026, 2021 WL 1721442, at *2 (M.D. Pa. Apr. 30, 2021) (quoting E. Elec. Corp. of N.J. v. Shoemaker Constr. Co., 652 F.Supp.2d 599, 605 (E.D. Pa. 2009)). However, the Court is not required to accept the moving party's factual allegations or legal conclusions regarding the amount of damages. Comdyne I, Inc. v. Corbin, 908 F.2d 1143, 1149 (3d Cir. 1990).
3. DISCUSSION
Upon review, Plaintiff's Motion for Default Judgment should be denied. Under Federal Rule of Civil Procedure 55, Plaintiff's Motion for Default Judgment is premature because she did not first request the Court to enter default. As Bitar points out, Plaintiff also does not proffer proof that she properly served the summons on Bitar. See Fed.R.Civ.P. 4.
Even if Plaintiff had satisfied the procedural requirements, however, default judgment would be improper. Bitar entered his appearance shortly after Plaintiff filed the instant motion, and there is no indication that this relatively short delay was the result of any misconduct. Moreover, Plaintiff did not suffer any prejudice as a result of this brief delay. Defendants filed Motions to Dismiss, and the undersigned has submitted a pending Report and Recommendation recommending that Plaintiff be required to re-plead her Complaint because it does not comply with Federal Rule of Civil Procedure 8. ECF No. 53. Therefore, the Court should deny Plaintiff's Motion for Default Judgment.
4. CONCLUSION
For the foregoing reasons, the Motion for Default Judgment, ECF No. 26, should be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.