IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BOBBY DEWEY WILLIAMS, JR., :

:

Plaintiff, : CIVIL ACTION

:

v. :

:

UNDERCOVER OFFICER EDWIN :

SANTIAGO, CI, POLICE OFFICER JUSTIN : NO. 04-4841

UCZYNSKI, POLICE OFFICER JEFFREY :

STONE, POLICE OFFICER DARREN :

GRABOSKIE, and POLICE OFFICER ROBERT :

GILBERT :

:

Defendants. :

MEMORANDUM AND ORDER

CHARLES B. SMITH

CHIEF UNITED STATES MAGISTRATE JUDGE

The motion currently before the Court stems from the entry of a default judgment, on June 1,

2006, against defendants as to liability. In an effort to resuscitate their case, defendants have moved

to set aside this default judgment. Having considered the parties’ written briefs as well as their oral

argument on the issue, the Court declines to exercise its discretion to set aside the judgment of default.

I. PROCEDURAL HISTORY

On October 22, 2004, plaintiff filed a complaint in the above-referenced action alleging that the

five defendant officers used excessive force when effectuating his arrest, in violation of his federal civil

rights and state common law. Following some initial motions and the filing of defendants’ answer, the

parties proceeded into the discovery phase. On January 13, 2006, plaintiff filed a motion to compel

defendants’ answers to his first and second sets of discovery requests sent in August and November

2005 respectively, claiming that defendant either completely failed to respond or provided inadequate

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responses to discovery requests. Defendants submitted no answer to the motion and, in absence of any

opposition, the Court granted the motion. On April 21, 2006, plaintiff submitted another motion to

compel, this time seeking defendants’ responses to his third set of discovery requests. The motion

alleged that defendants not only failed to provide complete responses to this discovery, but had yet to

provide full responses to the first two sets of discovery requests. Again, defendants filed no response.

As such, the Court entered a second order compelling defendants to respond to plaintiff’s third set of

discovery requests within seven days, i.e. by May 19, 2006, “or otherwise suffer a judgment by default.”

When no response was forthcoming from defendants, the Court, on June 1, 2006, entered a default

judgment as to liability. Eleven days later, and only three days prior to jury selection, defendants moved

to set aside the default judgment. It is to this motion we now turn.

II. DISCUSSION

Under Federal Rule of Civil Procedure 55(c), a default judgment order can be set aside in

accordance with the standard set forth in Rule 60(b). FED R. CIV. P. 55(c); East Coast Exp., Inc. v.

Ruby, Inc., 162 F.R.D. 37, 39 (E.D. Pa. 1995). Fed. R. Civ. P. 60(b) then provides that: 

(b) On motion and upon such terms as are just, the court may relieve a party or his legal

representative from a final judgment, order, or proceeding for the following reasons: (1)

mistake, inadvertence, surprise, or excusable neglect . . . .

Although doubtful cases should be decided in favor of setting aside the entry of defaultjudgment so that

they may be decided on their merits, the decision to open a default judgment is left to the discretion of

the district court. Harad v. Aetna Casualty & Surety Co., 839 F.2d 979, 982 (3d Cir. 1988). The Third

Circuit has mandated that, when deciding whether or not to vacate a default judgment, the district court

must consider four factors, as follows:

1. Whether the defendant has a prima facie meritorious defense to the underlying action;

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2. Whether the plaintiff will be prejudiced if the judgment is vacated;

3. Whether the defaulting defendant’s conduct is excusable or culpable; and

4. The effectiveness of alternative sanctions

Emascos Ins. Co. v. Sambrick, 834 F.2d 71, 73 (3d Cir. 1987); $ 55,518.05 in U.S. Currency, 728 F.2d

192, 195 (3d Cir. 1984). Cognizant of the Third Circuit’s dictate that the district court make explicit

findings concerning these factors, we now address each one individually.

A. Meritorious Defense

“The threshold issue in opening a default is whether a meritorious defense has been asserted,”

Hritz v. Woma Corp., 732 F.2d 1178, 1191 (3d Cir. 1984). The logic reasons that if defendant has no

chance of prevailing, there is no need to set aside the judgment. $55,518.05 in U.S. Currency, 728 F.2d

at 194-195. A meritorious defense is established if the defendant's allegations would be a complete

defense to the action if established at trial. Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir.1984).

A general denial is insufficient to overturn a default. Cassell v. Philadelphia Maintenance Co., 198

F.R.D. 67, 69 (E.D. Pa. 2000). On the other hand, the defendant need not establish the merit of its

defense; rather he must assert facts sufficient to support the existence of a prima facie meritorious

defense. Id..

In this case, defendants have denied all of plaintiff’s allegations and claimed that the use of force

against plaintiff was justified to effectuate his arrest. See Answer to Amended Complaint at ¶¶ 11-12.

Further, they set forth numerous affirmative defenses which establish an absolute bar to their liability.

See Answer at pp. 9-14. The case then turns strictly on credibility: that of plaintiff’s versus that of the

defendant officers. If the jury chose to credit the defendants’ testimony, then defendants could prevail.

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Therefore, this first factor counsels in favor of setting aside the default.

B. Culpability of Defendants

Defendants do not fare as well, however, under the next factor – culpability. The standard for

culpability is “willfulness” or “bad faith” on the part of the defendant. Hritz, 732 F.2d at 1182.

“[M]ore than mere negligence [must] be demonstrated.” Id. at 1183. “Reckless disregard for repeated

communications from plaintiffs and the court . . . can satisfy the culpable conduct standard.” Id.;

see also Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance Club, Inc., Civ. A. No. 05-1031, 2006

WL 623074, *3 (3d Cir. March 14, 2006). Courts in this circuit have found lack of culpability only

where the mistakes were innocent, accidental or somehow excusable. Emasco, 834 F.2d at 75 (finding

no culpability where the defendant was not notified of a court conference, he was only given two days

to give an answer, and his counsel was misinformed about what was required); East Coast Exp. 162

F.R.D. at 40 (holding that failure of defendant to answer was not an attempt to avoid litigation, but

resulted from a misunderstanding as to the means by which proper service is achieved, and thus was

excusable neglect); Chase Manhattan Bank v. Iridium Africa Corp., Civ. A. No. 00-564, 2002 WL

732070, *4 (D. Del. April 5, 2002) (finding excusable neglect where defendant failed to respond to suit

under good faith belief that it was never properly served).

In light of the inculpatory procedural history in this matter, defendants stand hard-pressed to

prove either innocence or excusable neglect. Indeed, defendants did not merely miss deadlines, but

repeatedly ignored discovery requests, motions, court orders compelling discovery and scheduling

orders. On two occasions, plaintiff had to file motions to compel answers to disregarded discovery

requests. Following the first motion – to which defendants did not bother to respond – the Court

granted plaintiff’s requested relief. Following the second motion – to which defendants again failed

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1

 Defendants claimed to have faxed the ordered discovery on June 1, 2006. Aside from the fact that it was

already two weeks late, the responses, as indicated by plaintiff and not denied by defendants, were grossly

incomplete.

2

 Defendants ultimately filed their pretrial memorandum on June 5, 2006. While they claim to have mailed

it on June 1, 2006 – one day prior to the mailing of the default judgment – that fact is of no moment. Defendants

were obligated to file their pretrial memorandum by May 24, 2006. The fact that they simply put it in the mail –

obviously without using any priority mailing service – one week later does not change the fact that it was late.

3

 Defendants suggest that although the Court’s default judgment order was mailed on June 2, 2006, they

did not receive it until June 8, 2006. The Court finds it difficult to accept that a mailing from Philadelphia to

Reading took six days. In any event, defendants were clearly forewarned that a failure to comply with the Court’s

May 12, 2006 order would result in default judgment being entered as early as May 19, 2006. Knowing that they

had not so complied, defendants should have been on the alert for such an order – an easy task in these days of

electronic docketing.

4

 See Defendant’s Memorandum in Support of Motion to Set Aside Default Judgment, p. 2.

5

to respond – the Court again granted relief, but this time warned that noncompliance after seven days,

i.e. by May 19, 2006, would result in default judgment. Notwithstanding the unqualified notice

provided by the Court, defendants still failed to submit the mandated discovery.1 To compound matters,

they then ignored the May 24, 2006 deadline for filing their pre-trial memorandum without seeking an

extension of time.2 As a result of these failures, the Court entered the unequivocally promised default

judgment on June 1, 2006.3 While they should have been neither surprised nor unprepared for such an

order, defendants again failed to immediately act; instead they waited until June 13, 2006, two days

prior to jury selection, to move to reopen the default judgment. In that motion, defense counsel openly

conceded his errors and his repeated unjustified failures to respond to court-imposed deadlines. His

only excuse was that he did not have adequate resources to defend against the zealous advocacy of

plaintiff’s firm. Aside from the fact that the Court finds no excessive or unreasonable litigation tactics

employed by plaintiff’s counsel, such claims far from excuse defendants’ complete failure to litigate

this case, particularly in light of their own concession that the matter is a “simple one of credibility.”4

So shocking was defense counsel’s behavior, the Court is left to wonder whether counsel’s inaction was

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a calculated stratagem to avoid putting the five defendants on the stand. In any event, as defendants’

conduct rises past mere negligence to the level of recklessness and bad faith, this factor advocates

against reopening the judgment.

C. Prejudice to Plaintiffs

The same holds true with respect to the third factor – prejudice to plaintiffs. Prejudice occurs

when relief would hinder the plaintiff’s ability to pursue his claims through, for example, loss of

evidence, increased potential for fraud, or substantial reliance on the default. See Feliciano v. Reliant

Tooling Co., Ltd., 691 F.2d 653, 657 (3d Cir. 1982). “Delay in realizing satisfaction on a claim rarely

constitutes prejudice sufficient to prevent relief.” Id. at 656-657. 

Plaintiff, in this case, has alleged cognizable prejudice. As both parties agree, the outcome of

this case hinges entirely on credibility. The number of defendants, coupled with their status as police

officers and plaintiff’s status as a convicted criminal, certainly lends some bias towards the defense in

terms of this credibility question. Accordingly, plaintiff’s success in a liability case depends in large

part on his ability to impeach and discredit the defendants’ stories through the materials received in

discovery. Despite repeated phone calls and letters by plaintiff, court orders and threats of default

judgment, however, defendants have invariably failed to supply the necessary discovery, including

evidence regarding inconsistencies in their stories, other allegations of civil rights violations against

them, reports issued by the Use of Force Review Board and phone records reflecting communications

among the defendants after the incident. Nor have defendants provided this Court with any assurance

that reopening the default judgment will result in all appropriate materials being sent to plaintiff. In

fact, during oral argument defense counsel simply suggested that plaintiff had other grounds on which

to test the credibility of the defendants. As it is not up to defense counsel to dictate plaintiff’s case

Case 2:04-cv-04841-CBS Document 59 Filed 06/22/06 Page 6 of 8
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strategy, this argument fails to mitigate this Court’s finding of prejudice. 

D. Alternative Sanctions

The final inquiry for this Court asks whether alternative sanctions, in place of default, would

achieve the same result. In the past, this Court has required a defaulting defendant to compensate the

plaintiff for the costs in defending against a motion to set aside the default judgment and to deter a

defendant from failing to answer in the future. Foy v. Dicks, 146 F.R.D. 113, 117-118 (E.D. Pa. 1993).

When doing so, the Court hoped to deliver a “wake-up call” to defaulting attorneys to avoid future

negligent misconduct. Id. at 118. In this case, however, we do not possess the same hope that

alternative sanctions will serve as a deterrent, particularly in light of the fact that defendants’ counsel

repeatedly ignored this Court’s warnings. Further, as discussed in detail above, such sanctions still fail

to achieve the primary goal – assuring that plaintiff can fully and fairly litigate his case with all

necessary evidence. Thus, this last factor again compels us to find that the default should remain intact.

E. Conclusion

While the Court remains cognizant of the bias against default judgments, we find ourselves

constrained by the litigation techniques pursued by defense counsel. Had he at least sought extensions

of time, acknowledged some of this Court’s orders or even responded with some urgency and thorough

legal briefing to the entry of the default judgment, we may have been somewhat more sympathetic to

his motion. Absent sufficient justification for reopening and given the fact that plaintiff would suffer

a detriment, however, the Court simply cannot excuse defendants’ neglect.

An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BOBBY DEWEY WILLIAMS, JR., :

:

Plaintiff, : CIVIL ACTION

:

v. :

:

UNDERCOVER OFFICER EDWIN :

SANTIAGO, CI, POLICE OFFICER JUSTIN : NO. 04-4841

UCZYNSKI, POLICE OFFICER JEFFREY :

STONE, POLICE OFFICER DARREN :

GRABOSKIE, and POLICE OFFICER ROBERT :

GILBERT :

:

Defendants. :

ORDER

AND NOW, this 22nd day of June, 2006, upon consideration of Defendants’ Motion

to Set Aside Judgment by Default as to Liability (Doc. No. 46) and Plaintiff’s response thereto, and

having held oral argument on the Motion, it is hereby ORDERED that the Motion is DENIED.

It is so ORDERED.

BY THE COURT:

/s/ Charles B. Smith 

CHARLES B. SMITH

CHIEF UNITED STATES MAGISTRATE JUDGE

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