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Witzke v. Ferguson

United States District Court, D. Delaware

January 11, 2019

BROOKS M. WITZKE, Plaintiff,

          Brooks M. Witzke, Salisbury, Maryland. Pro Se Plaintiff.

          Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant.



         Plaintiff Brooks M. Witzke ("Plaintiff'), who proceeds pro se and has paid the filing fee, filed this action pursuant to 42 U.S.C. § 1983, 19 Del. C. § 3318(c) and 28 U.S.C. § 1654. (D.I. 1) Before the Court is Defendant's motion to vacate Clerk's entry of default and motion to dismiss, opposed by Plaintiff. (D.I. 14 18, 19). Also before the Court is Plaintiff's motion to strike immaterial, impertinent, or scandalous matter, opposed by Defendant Bettina Cecile Ferguson ("Defendant") and Plaintiff's motion to strike Betty Lord Declaration. (D.I. 21, 23, 24).

         I. BACKGROUND

         Plaintiff applied for unemployment insurance benefits and appeared at a scheduled hearing before Defendant on December 10, 2015. (D.I. 1 at 4) Plaintiff alleges that Defendant, a former unemployment appeals referee for the Delaware Division of Unemployment Insurance ("DDUI"), directed numerous disparaging condescending remarks towards him during the hearing. (Id. at 4-7) Plaintiff alleges that Defendant, who is sued in her individual capacity, "maliciously, in bad faith and with wanton negligence, intentionally deprived Plaintiff of his right to due process and be afforded a fair hearing in accordance with the Constitution of the United States, the Constitution of the State of Delaware, and the statutory protections of the State of Delaware." (D.I. 1 at 1-2) The Complaint alleges that Defendant's "actions were so extreme, outrageous, and outside the scope of her employment" that she has no immunity under 10 Del. C. § 4001, and she is not covered under Delaware's Sovereign Immunity for State employees because Defendant "willfully disregarded her ministerial duties as an unemployment referee." (Id. at 2) Plaintiff was denied unemployment benefits.[1] (Id. at 10) He alleges that his attempts to appeal the case were unsuccessful.[2] (Id.)

         The Complaint contains three counts: (1) Count I alleges a violation of 42 U.S.C. § 1983 based on failure to provide adequate procedural due process prior to depriving Plaintiff liberty and property; (2) Count II alleges a violation of 19 Del. C. § 3318(c) based on failure to afford Plaintiff a reasonable opportunity for a fair hearing; and (3) Count III alleges a violation of 28 U.S.C. § 1654 based on failure to allow Plaintiff to conduct his own case personally. Plaintiff seeks compensatory and punitive damages.

         Plaintiff commenced this action on September 11, 2017 and sought additional time to serve Defendant because he was having difficulty locating her. (D.I. 5) On December 28, 2017, he was given an additional 60 days from the date of the order to serve Defendant. (D.I. 6) On March 12, 2018, Plaintiff was granted a second extension of time and given until 60 days from the date of the order to serve Plaintiff. (D.I. 8) The order advised Plaintiff that there would be no further extensions. (Id.) On May 23, 2018, Plaintiff filed an affidavit of service and return of service that indicated a private process server had served Defendant on May 3, 2018, upon the DDUI. (D.I. 9) When Defendant did not timely answer or otherwise appear, Plaintiff sought an entry of default. (D.I. 12) The Clerk's entry of default was entered on July 9, 2018. (D.I. 13)

         On July 16, 2018, Defendant filed a combined motion to vacate entry of default and to dismiss. (D.I. 14) Defendant moves to vacate the entry of default on the grounds that she was not properly served. She moves to dismiss on the grounds that: (1) the Complaint has not been timely served; (2) the Court lacks jurisdiction over Plaintiff; (3) the procedural due process claims are barred because Plaintiff had state remedies available to him to provide due process; and (4) the claims are barred by absolute judicial immunity.


         An entry of default was entered when Defendant did not answer or otherwise appear. Defendant moves to set aside the entry of default on the grounds she was not properly served. Plaintiff responds that Defendant was properly served. The parties filed competing affidavits. (See D.I. 14 at 7; D.I. 18-2, D.I. 20)

         The decision to vacate the entry of default lies within the sound discretion of the trial court. See Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951). The Court considers three factors in exercising its discretion to vacate a default judgment; (1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether the default was the result of the defendant's culpable conduct. United States v. $55, 518.05 in U.S. Currency, 728 F.2d 192, 194-95 (3d Cir. 1984). Any doubtful cases are "to be resolved in favor of the party moving to set aside the default judgement so that cases may be decided on the merits." Id. at 195.

         These factors evaporate if service of process was ineffective. See In re Shepherd, 2018 WL 6132031, at *2 (Bankr. D.N.J. 2018). An entry of default may be set aside where service of process is lacking. See e.g., Mettle v. First Union Nat'l Bank, 279 F.Supp.2d 598, 603 n.3 (D.N.J. 2003) (court need not consider the factors to vacate a default entry where service of process is lacking); Smalls v. Buckalew Frizzell & Crevina LLP, 2014 WL 2889645, at *1 (D.N.J. 2014) ("failure to effect proper service constitutes good cause" to set aside entry of default); Church-El v. Bank of New York, 2013 WL 1190013, at *3-6 (D. Del. 2013) (granting defendant's motion to set aside entry of default for insufficient service of process and denying plaintiff's motion for default judgment).

         The return of service states that service was effected on May 3, 2018, upon Betty Lord ("Lord") at the DDUI. (D.I. 9) In support of her motion, Defendant filed the declaration of Lord, who is employed by the Department of Labor, Division of Unemployment Insurance ("DOL-DUI"). (D.I. 14 at 7) Lord states that she was led to believe that she was accepting service on behalf of the DOL-DUI, not Defendant. (Id.) She states that Defendant was not employed the DOL-DUI, was not ...

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