United States District Court, D. Delaware
BROOKS M. WITZKE, Plaintiff,
BETTINA CECILE FERGUSON, Defendant.
M. Witzke, Salisbury, Maryland. Pro Se Plaintiff.
Clement Handlon, Deputy Attorney General, Delaware Department
of Justice, Wilmington, Delaware. Counsel for Defendant.
CONNOLLY, U.S. DISTRICT JUDGE.
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).
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. (Id. at
10) He alleges that his attempts to appeal the case were
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
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)
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.
ENTRY OF DEFAULT
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,
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.
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).
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 ...