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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MICHAEL PERRY,

Plaintiff,

v. 

STATE OF TROOPER BRANDON A. 

BRUNS, COLONEL RICK FUENTES, 

OFFICER WALTER RICHMOND, 

PROSPECT PARK POLICE DEPT., 

CHIEF OF POLICE CHARBEL ADIE, 

BOROUGH OF PROSPECT PARK, 

OLIN PAJIK, JOHN DOES NOS 1-10, 

and THE STATE OF NEW JERSEY 

THOUGH ITS AGENCY THE STATE 

POLICE, 

Defendants.

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Hon. Dennis M. Cavanaugh

OPINION

Civil Action No. 11-cv-2840 (DMC) (JAD)

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon motion by Defendant State Trooper Brandon 

Bruns (“Defendant Bruns”) to vacate default pursuant to FED. R. CIV. P. 55(c) and to dismiss 

Plaintiff’s Complaint pursuant to FED. R. CIV. P. 12(b)(6). (Def.’s Mot. to Vacate Default & 

Dismiss Compl., Aug. 14, 2012, ECF No. 32). Pursuant to FED. R. CIV. P. 78, no oral argument 

was heard. After considering the submissions of all parties, it is the decision of this Court for the 

reasons herein expressed that Defendant’s Motion to Vacate Default is granted and the Motion to 

Dismiss the Complaint is granted in part and denied in part.

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I. BACKGROUND

1. Procedural History

Plaintiff Michael Perry (APlaintiff@) brought an action on May 18, 2011, against the 

following defendants: the New Jersey State Police; Olen Pajik (“Defendant Pajik”); State Trooper 

Brandon A. Bruns (“Defendant Bruns”); the Superintendent of the New Jersey State Police, 

Colonel Rick Fuentes (“Defendant Fuentes”); the Borough of Prospect Park; the Prospect Park 

Police Department; Walter Richmond, a police officer of the Borough of Prospect Park

(“Defendant Richmond”); Charbel Adie, the Chief of the Prospect Park Police Department

(“Defendant Adie”); and John Does 1B10, New Jersey State Troopers (“Defendants John Does”). 

(Pl=s Compl. 2B3, May 18, 2011, ECF No. 1). 

Defendants Prospect Police, Chief of Police Charbel Adie, and the Borough of Prospect 

Park (hereinafter collectively “Prospect Park Defendants”) filed a Motion to Dismiss on June 27, 

2011. (Prospect Park Defs.’ Mot. Br. 1, Jun. 27, 2011, ECF No. 3). Defendants Fuentes and the 

State of New Jersey, through its agency the State Police, filed a Motion to Dismiss on July 18, 

2011. (State Defs.’ Mot. Br. 1, Jul. 18, 2011, ECF No. 8). On August 2, 2011, Magistrate Judge 

Dickson granted Plaintiff=s Motion to Amend the Complaint. (Order Granting Motion to Amend 

Compl., Aug. 2, 2011, ECF No. 9). On August 17, 2011, the Prospect Park Defendants filed 

another Motion to Dismiss. (Prospect Park Defs.’ Mot. Br. 1, Aug. 17, 2011, ECF No. 11). 

Plaintiff filed a Response to all three Motions to Dismiss on September 20, 2011. (Pl.=s Opp. Br. 

1, Sept. 20, 2011, ECF No. 17). 

On September 1, 2011, an entry of default was entered for Defendant Pajik. (Order of 

Entry of Default, Sept. 1, 2011, ECF No. 12). On September 15, 2011, an entry of default was 

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entered for Defendant Bruns. (Order of Entry of Default, Sept. 15, 2011, ECF No. 16). On 

September 21, 2011, an entry of default was entered for Defendant Walton. (Order of Entry of 

Default, Sept. 21, 2011, ECF No. 18). After appearing, Defendant Walton and Plaintiff entered 

into a consent order on October 18, 2011 to vacate the default entry against Defendant Walton. 

(Order to Vacate Default Entry, Oct. 18, 2011, ECF No. 21). On November 1, 2011, Defendant 

Richmond filed an answer to the Amended Complaint denying the majority of Plaintiff=s 

allegations and asserting affirmative defenses including, but not limited to, failure to state a claim. 

(Def.’s Mot. Br. 1, Nov. 1, 2011, ECF No. 24). 

On February 6, 2012, this Court granted three motions to dismiss: those of Defendants 

State of New Jersey, through its agency the State Police, and Defendant Fuentes, Defendant 

Prospect Park Police Department, Defendant Chief of Police Charbel Adie, and Defendant 

Borough of Prospect Park. (Opinion and Order, Feb. 6, 2012, ECF Nos. 27, 28). Accordingly, 

the remaining defendants are Defendant Bruns, Defendant Richmond, Defendant Pajik, and 

Defendant John Does 1B10. 

On June 11, 2012, Magistrate Judge Dickson granted a motion by Plaintiff=s attorney to 

withdraw. (Order Granting Mot. to Withdraw, Jun. 11, 2012, ECF No. 30). Presently, 

Defendant Bruns argues that he secured consent from Plaintiff=s former counsel to vacate the entry 

of default, but counsel has since been relieved from representation of Plaintiff. (Def.=s Mot. Br. 

5). 

On August 14, 2012, Defendant Bruns filed a motion to vacate the entry of default and 

dismiss Plaintiff=s complaint. (Def.’s Mot. Br. 1, Aug. 14, 2012, ECF No. 32). In support of his 

motion to vacate the entry of default, Defendant Bruns asserted that he wished to avoid the 

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expenses of counsel considering that all other governmental agencies were no longer involved in 

the action. (Def.’s Mot. Br. 1). He also asserts that because Plaintiff=s attorney had withdrawn, 

he believed Plaintiff might voluntarily dismiss the matter. Plaintiff has not filed a response. 

Defendant Bruns= Motion to Vacate the Entry of Default and Dismiss Plaintiff’s Complaint are 

before the Court.

2. Factual Background

The claims stated in Plaintiff’s Complaint originated out of dealings with Defendant Bruns, 

Defendant Richmond, and Defendant Pajik. These Defendants worked for Pentaboro Inc., a 

company owned by Plaintiff, at various points between 2005 and 2008. (Pl.=s Am. Compl. ¶¶ 

14-20, Jul. 18, 2011, ECF No. 7-2). Pentaboro Inc. provided personal security detail to various 

clients. (Am. Compl. ¶ 14). While Defendant Bruns is a New Jersey State Trooper and 

Defendant Richmond is a police officer of the Borough of Prospect Park, Defendant Pajik is not a 

law enforcement officer of any kind. (Am. Compl. ¶¶ 4, 5, 9). 

Plaintiff would compensate these three Defendants for their employment Aby check and 

cash,@ and in kind, or by alternative means, such as, “making car payments for employees, by 

paying for cell phone services, etc.@ (Am. Compl. ¶ 18). These alternative compensation 

methods included taking over the sublease of a Lincoln Mark LT vehicle Defendant Pajik no 

longer wanted. (Am. Compl. ¶ 19). Plaintiff agreed to pay the remaining terms of the lease and 

take possession of the vehicle. (Am. Compl. ¶ 19). Another alternative compensation plan 

involved Defendant Bruns= assignment of a cell phone contract to Plaintiff after Bruns no longer 

wanted the phone. (Am. Compl. ¶ 20). Similarly, Plaintiff agreed to meet the terms of the 

contract and take possession of the phone. (Am. Compl. ¶ 20). 

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In September 2008, Plaintiff became a partner in the planning and development of a 

nightclub named Mansion. (Am. Compl. ¶ 21). Defendant Bruns made a $10,000 contribution 

to Plaintiff and his business partner for the right to place an Automatic Teller Machine in Mansion, 

and the exclusive rights to Awork the door,@ and receive compensation for such services. (Am. 

Compl. & 22).

Plaintiff states, in November of 2008, that he began having domestic problems with his 

wife. (Am. Compl. & 23). Ultimately, Plaintiff=s wife abandoned Plaintiff and their son, and 

thereafter Plaintiff moved to Clearwater Beach, Florida. (Am. Compl. & 25). Upon doing so, 

Plaintiff stopped maintaining Pentaboro, Inc. and Mansion. (Am. Compl. & 25). After some 

time, Plaintiff and his son moved to Florence, Arizona. (Am. Compl. & 27). In or about

September or October of 2009, Plaintiff alleges Defendant Bruns and Defendant Richmond 

became infuriated by Plaintiff=s move and termination of business. (Am. Compl. & 28). 

Thereafter, Plaintiff alleges the aforementioned Defendants formed an enterprise with the agreed 

purpose of tracking down Plaintiff in order to cause him harm. (Am. Compl. & 28). Plaintiff 

alleges that Defendants Bruns and Richmond, Athrough their employment at their respective police 

departments,@ were able to access the National Crime Index Center (hereinafter ANCIC@) and at 

separate times used it to perform searches in an attempt to locate Plaintiff. (Am. Compl. & 29).

Further, Defendants Bruns, Richmond, and Pajick falsely reported the Lincoln MT vehicle 

as stolen to Prospect Park Police Department, and were able to locate the vehicle and Plaintiff in 

Arizona. (Am. Compl. & 32). Next, Defendant Bruns or Defendant Richmond informed the 

Arizona law enforcement authorities that the stolen vehicle was in their jurisdiction and that 

Plaintiff had stolen it, and advised them to make efforts to recover the vehicle. (Am. Compl. &

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35). With guns drawn in anticipation of apprehending Plaintiff and recovering the stolen Lincoln 

vehicle, Arizona authorities arrived at the residence of Plaintiff=s friend where they thought 

Plaintiff was staying. (Am. Compl. & 36). The authorities realized the address was not 

Plaintiff’s, and obtained the correct address from Plaintiff’s friend. (Am. Compl & 37). 

Thereafter, they arrived at Plaintiff’s home, again with guns drawn. (Am. Compl & 37). The 

authorities seized the vehicle, but upon further investigation and the questioning of Plaintiff, they 

became aware that the vehicle was not stolen as alleged. (Am. Compl. & 37). The Arizona 

authorities never filed formal charges or initiated prosecution of Plaintiff in connection with the 

vehicle. (Am. Compl. & 37).

After the failure of the Defendants’ attempt to have Plaintiff arrested, Plaintiff alleges 

Defendant Bruns devised another scheme whereby he would falsely report that Bruns=s identity 

was stolen by Plaintiff. (Am. Compl. & 39). Plaintiff states that Defendant Bruns went to the 

South Hackensack Police Department and utilized the cell phone contract which he had assigned 

to Plaintiff as evidence of the alleged identity theft. (Am. Compl. & 39). The County decided 

not to proceed with Defendant Bruns= claim and did not file formal charges. (Am. Compl. & 40).

Plaintiff contends Defendant Bruns= final scheme involved Plaintiff=s ex-wife, with whom 

Bruns conspired to file kidnapping charges against Plaintiff. (Am. Compl. & 42). Plaintiff states 

that the charges were filed in New Jersey and dismissed. (Am. Compl. & 42). Plaintiff further 

contends that Athe record@ revealed that A[Plaintiff=s ex-wife] and her attorney had obtained 

information about Plaintiff via Bruns.@ (Am. Compl. & 42). Plaintiff contends that Defendant 

Bruns filed the same charges in Arizona, after flying there with the Plaintiff=s ex-wife. (Am. 

Compl. & 44). Upon hearing about the charges, Plaintiff returned to New Jersey on or about 

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November 2009. (Am. Compl. & 45).

3. Nature of Plaintiff=s Claims

Plaintiff makes seven claims in his Amended Complaint. He alleges violations of: (1)

Section 1983 due to a violation of his constitutional rights and because Defendants were acting 

under the color of state law; (2) Section 1985(3) because of interference with civil rights; (3) 

Federal Constitutional provisions due to violations of substantive due process under the 

Fourteenth Amendment; (4) State Constitutional provisions because of a denial of substantive and 

procedural right to due process whereby Plaintiff was denied his right to be free from answering 

for a criminal offense, unless on the presentment or indictment of a grand jury; (5) Section 1962(d)

(Racketeer Influenced and Corrupt Organizations , hereinafter, “RICO” claims) because of the acts 

from an enterprise formed by Defendants engaged in conspiracy to commit fraud and mislead 

authorities; (6) N.J.S.A. 2C:41-2, (NJ RICO) for the same reasons as (5); and (7) Section 1030, the 

Federal Computer Fraud and Abuse Act, because Defendants exceeded their authority to access 

the NCIC and thereby threatened public health or safety. (Am. Compl. && 52B88). Plaintiff 

seeks punitive and compensatory damages as well as attorney’s fees and any other relief that this 

Court deems equitable and just for violation of the aforementioned statutes. (Am. Compl. &&

52B88). Plaintiff further states that injury includes Aloss of confidence in and feelings of betrayal 

by the justice system, shock, and emotional scarring . . . @ as well as Awantonly inflicted distress.@ 

(Am. Compl. && 52B88).

4. Defendant=s Motion to Vacate the Entry of Default and Dismiss

Defendant Bruns alleges that: (1) that he did not violate Section 1983 because he was not 

acting under the color of law, but as a private individual; (2) he did not violate Section 1985(3) 

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because Plaintiff is not of a protected class; (3) he did not violate Section 1962(d) (RICO) because 

the conduct engaged in is a listed violation of RICO; and (4) he did not violate section 1030, the 

Federal Computer Fraud and Abuse Act, because Plaintiff does not qualify for damages available 

under the statute. 

II. LEGAL STANDARD

A. Motion to Vacate an Entry of Default

Under the Federal Rules of Civil Procedure, Rule 55(c) states that, A[t]he court may set 

aside an entry of default for good cause, and it may set aside a default judgment under Rule 

60(b)1

.@ FED. R. CIV. P. 55. In deciding a motion under Rule 55(c) and Rule 60(b), the decision 

is left primarily to the discretion of the district court. United States v. $55,518.05 in U.S. 

Currency, 728 F.2d 192, 194 (3d Cir. 1984) (hereinafter AU.S. Currency@); Tozer v. Charles A. 

Krause Mill. Co., 189 F.2d 242, 243 (3d Cir. 1951). This Court does not favor entry of defaults or 

default judgments. U.S. Currency, 728 F.2d at 194B95. AWe require doubtful cases to be 

resolved in favor of the party moving to set aside the default judgment so that cases may be 

decided on their merits.@ Id.; see also, Meducnic v. Lederer, 533 F.2d 891, 894 (3d Cir. 1976); 

Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 982 (3d Cir. 1988). 

The District Court must consider the following factors in exercising its discretion in 

 1 FED. R. CIV. P. 60(b) provides: 

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, 

order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) 

newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move 

for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), 

misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been 

satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or 

applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

FED. R. CIV. P 60.

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granting or denying a motion to set aside a default under Rule 55(c) or a default judgment under 

Rule 60(b)(1): (1) whether the plaintiff will be prejudiced; (2) whether the defendant has a 

meritorious defense; (3) whether the default was the result of the defendant's culpable conduct; and 

(4) the effectiveness of alternative sanctions. U.S. Currency, 728 F.2d at 195; Emcasco Ins. Co.v. 

Sambrick, 834 F.2d 71, 73 (3d Cir. 1987). 

B. Motion to Dismiss 

In deciding a motion under Rule 12(b)(6), a district court is “required to accept as true all 

factual allegations in the complaint and draw all inferences in the facts alleged in the light most 

favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). 

“[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to 

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and 

a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations 

omitted). “[A court is] not bound to accept as true a legal conclusion couched as a factual 

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, assuming that the factual 

allegations in the complaint are true, those “[f]actual allegations must be enough to raise a right to 

relief above a speculative level.” Twombly, 550 U.S. at 555.

“A complaint will survive a motion to dismiss if it contains sufficient factual matter to 

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 

(2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded 

factual content allows the court to draw the reasonable inference that the defendant is liable for 

misconduct alleged.” Id. “Determining whether the allegations in a complaint are ‘plausible’ is 

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a ‘context-specific task that requires the reviewing court to draw on its judicial experience and 

common sense.” Young v. Speziale, Civ. No. 07-03129, 2009 WL 3806296, at *3 (D.N.J. Nov. 

10, 2009) (quoting Iqbal, 129 S. Ct. at 1950). “[W]here the well-pleaded facts do not permit the 

court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has 

not ‘shown’–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950.

“To decide a motion to dismiss, courts generally consider only the allegations contained in 

the complaint, exhibits attached to the complaint and matters of public record.” Pension Benefit 

Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). The complaint must 

show an entitlement to relief with its facts. Steedley v. McBride, 446 Fed.Appx. 424, 425 (3d Cir. 

2011) (citing Fowler v. UPMC Shadyside, 578 F.3d 203, 2011 (3d Cir. 2009)). 

III. DISCUSSION

A. Motion to Vacate an Entry of Default

The success of a motion to vacate an entry of default depends on a consideration of the 

following factors: (1) whether the defendant has a meritorious defense; (2) whether the plaintiff 

will be prejudiced; (3) whether the default was the result of the defendant's culpable conduct. 

U.S. Currency, 728 F.2d at 195. Whether defendant has asserted a meritorious defense is the 

threshold issue for the court determining whether to set aside a default; it is also the threshold 

question for the court when determining whether to set aside a default judgment. Hritz v. Woma 

Corp., 732 F.2d 1178, 1181 (3d Cir.1984); Interior Finish Contractors Ass'n of Delaware Valley v. 

Drywall Finishers Local Union No. 1955, 625 F. Supp. 1233, 1239 (E.D. Pa. 1985).

This Court grants Bruns= Motion to Vacate the entry of default. While the third factor 

clearly weighs against Defendant Bruns, he (1) asserts a meritorious defense by alleging he and 

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Pajik have not acted under the color of law and (2) Plaintiff will not be prejudiced because 

evidence will not be altered or scarce by a passage of time, and Plaintiff asserts no other potential 

prejudice. Granting this motion to vacate an entry of default is consistent with the Court of 

Appeal=s position requiring uncertain cases to be decided on the merits. 

1. Meritorious Defense

A meritorious defense is shown if the Aallegations of defendant's answer, if established at 

trial, would constitute a complete defense to the action.@ Interior Finish Contractors Ass'n of 

Delaware Valley v. Drywall Finishers Local Union No. 1955, 625 F. Supp. 1233, 1239 (E.D. Pa. 

1985) (hereinafter AInterior@); U.S. Currency, 728 F.2d at 196. The defendant's allegations must 

be specific, not merely Asimple denials and conclusionary statements.@ Interior, 625 F. Supp. at 

1239. 

In U.S. Currency, the Court of Appeals affirmed the Third Circuit=s decision to deny the 

defendant=s motion to set aside the entry of default. 728 F.2d at 197. The defendant was arrested 

with $55,518 in an attempt to purchase cocaine from government agents. Id. at 196. The Court 

ruled the plaintiff failed to allege facts, which if established at trial, would constitute a complete 

defense to the action. Id. at 196. The Court ruled this way because once property is used for the 

purpose of purchasing a controlled substance, the defendant had to assert that the property was not 

intended to be furnished by any person in exchange for a controlled substance. Id. at 196. The 

Court reasoned that the defendant, in his answer, failed to explain the source of the $55,518. Id.

Here, Defendant Bruns established a meritorious defense. Unlike the defendant in U.S. 

Currency, Defendant Bruns provides meritorious defenses by alleging facts that, if established, 

would constitute a complete defense to the action. In response to the claims brought by Plaintiff, 

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Defendant Bruns alleges (1) that he did not violate Section 1983 because he was not acting under 

the color of law, but as a private individual; (2) that he did not violate Section 1985(3) because 

Plaintiff has not alleged a protective class; (3) he did not violate Section 1962(d) (RICO) because 

the complained false or misleading statements are not a violation of RICO; and (4) he did not 

violate Section 1030, the Federal Computer Fraud and Abuse Act, because the loss or damages 

described are not recoverable for Plaintiff. These facts, if proven at trial, would constitute a 

complete defense to each claim. 

2. Prejudice to Plaintiff

In Farnese v. Bagnasco, the Third Circuit granted the defendant=s motion to set aside an 

entry of default. 687 F.2d 761, 766 (3d Cir. 1982). The plaintiff had entered an agreement with 

defendant to create a joint-venture that would aid Italian government entities in financing public 

projects. Id. at 762. To determine whether there would be prejudice to the plaintiff, the Court 

considered the effect that the passage of time would have on the plaintiff=s case. Id. at 764. The 

Court reasoned that the agreement letter at issue in the case would not be less effective evidence 

merely because time had passed. Id.

In Feliciano v. Reliant Tooling Co., Ltd., the Court of Appeals set aside default judgment

entered. 691 F.2d 653, 658 (3d Cir. 1982). The plaintiff had been injured as a result of the 

defendant=s faulty equipment. Id. at 655B656. The Third Circuit ruled that prejudice was 

unlikely even if the plaintiff faced delay in satisfaction of the claim and more expenses by the 

judgment being vacated. Id. at 656B57. Furthermore, the Court ruled that plaintiff did not allege 

a loss of available evidence, or a potential for coercion or fraud. Id. 

Presently, Defendant Bruns argues that Plaintiff will not suffer prejudice from this action. 

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(Def.’s Mot. Br. 13). The Court agrees that Plaintiff is unlikely to suffer prejudice from this Court 

vacating the entry of default. Similar to Feliciano, Plaintiff in this case has not alleged a loss of 

available evidence or a potential for coercion or fraud. See 691 F.2d at 658. Plaintiff relies on 

evidence that Defendant Bruns invested $10,000 dollars in the Mansion venture, that the business 

failure of Mansion caused Defendant Bruns and Defendant Richmond to track down Plaintiff

using the NCIC, and that Defendant Pajik falsely reported Plaintiff=s car stolen. Like the letter 

agreement in Farnese, the evidence is not materially affected by the passage of time. See Farnese 

v. Bagnasco, 687 F.2d 761, 766 (3d Cir. 1982). Adequate documentation can be recovered during 

discovery to determine the merits of Plaintiff=s claim. For these reasons, Plaintiff is unlikely to be 

prejudiced by granting Defendant Bruns= Motion to Vacate an entry of default. 

3. Culpable Conduct

Defendant Bruns asserts that his desire to avoid unnecessary expenditures on counsel fees 

was reason not to respond to Plaintiff=s Complaint. Further, Defendant Bruns argues that the case 

appeared as though it may go away on its own because this Court dismissed Government 

Defendants and Plaintiff=s attorney withdrew. Lastly, Defendant Bruns argues that he reached an 

agreement to vacate the entry of default with Plaintiff=s attorney before the attorney withdrew from 

representation. 

In assessing whether the entry of default was caused by a defendant=s culpable conduct, the 

courts look at factors such as whether the entry of default was caused by defendant or defendant=s 

attorney and whether the defendant responded to the entry of default with reasonable promptness. 

Hritz v. Woma Corp., 732 F.2d 1178, 1183 (3d Cir. 1984); Rockwell Transp. Services, Inc. v. Int'l 

Printing & Envelope Co., Inc., Civ. No. 02-724, 2002 WL 1018928 (E.D. Pa. May 20, 2002)

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(hereinafter ARockwell@). In addition, more than mere negligence must be demonstrated B

willfulness and bad faith include acts intentionally designed to avoid compliance. Hritz v. Woma 

Corp., 732 F.2d at 1183. 

In Rockwell, the Third Circuit granted the defendant=s motion to vacate an entry of default. 

2002 WL 1018928, at *1. To determine the third element B whether the defendant was culpable 

as to the entry of default B the Court ruled that the defendant had responded with reasonable 

promptness to the entry of default. Id. The Court reasoned that the defendant acted with 

reasonable promptness by responding one month after the entry of default had been entered. Id. 

Here, Defendant Bruns= decision to wait eight months before responding to the Court is 

negligent, but it is unlikely to rise to the level of bad faith. Still, this factor weighs against the 

Court vacating the entry of default. Unlike Rockwell, where the defendant responded one month 

after the entry of default was entered, Defendant Bruns did not respond with reasonable 

promptness to the entry of default. He responded eight months after the entry of default. 

Further, Defendant Bruns= non-response was due to his own conduct, not his attorney’s. This fact 

weighs in favor of the defendant=s culpable conduct because there is no recourse for defendant 

against his attorney. While the third factor weighs against Defendant Bruns, the fact that he 

provided a meritorious defense and that there is unlikely prejudice to Plaintiff’s case persuades this 

Court to set aside the entry of default. Accordingly, Defendant’s Motion to Vacate entry of 

default is granted. 

B. Motion to Dismiss

Defendant Bruns moves to dismiss all of Plaintiff’s federal claims, alleging: (1) that he did 

not violate Section 1983 because he was not acting under the color of law, but as a private 

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individual; (2) he did not violate Section 1985(3) because Plaintiff is not of a protected class; (3) 

he did not violate Section 1962(d) because the conduct engaged in is not a listed violation of 

RICO; and (4) he did not violate Section 1030, the Federal Computer Fraud and Abuse Act,

because Plaintiff does not qualify for damages available under the statute. (Def.’s Mot. Brief). 

1. Section 1983 Claim

Under Section 1983, a plaintiff must prove two elements in order to recover. Adickes v. 

S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604 (1970). First, the plaintiff must 

demonstrate that the defendant has deprived him of a right secured by the AConstitution and laws@

of the United States. Id. Second, the plaintiff must show that the defendant deprived him of this 

constitutional right Aunder color of any statute, ordinance, regulation, custom, or usage, of any 

State or Territory.@ Id. The second element requires that the plaintiff show that the defendant 

acted “under color of law.” Id. Accordingly, under Section 1983, the state and its officials, 

including state troopers, are immune from liability when acting within the scope of their official 

authority. See Will v. Michigan, 491 U.S. 58, 71 (1989). Defendant Bruns moves to dismiss this 

claim for a lack of the second element, specifically, that his actions taken against Plaintiff were not 

taken under color of law, but as a private individual. 

In Mark v. Borough of Hatboro, the Third Circuit determined, that to be acting under color 

of state law, one must misuse a power possessed by virtue of state law, and the resulting conduct be 

possible only because the wrongdoer was clothed with the authority of state law. 51 F.3d 1137, 

1150-51 (3d Cir. 1995); United States v. Classic, 61 S.Ct. 1031 (1941). The Court further ruled 

that even acts committed by a police officer are not committed under the color of state law unless 

they are in some way related to the performance of police duties. Id. at 1151.

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In Mark, a volunteer firefighter secretly set fire to a building, telling none of his fellow 

firefighters. Id. at 1151. When the Plaintiff brought an action under Section 1983, the Court 

ruled that the volunteer firefighter was acting as a private individual, pursuing his own goals in 

setting the fire, while the obligation of the enterprise was to put out fires. Id. at 1151.

In Pomykacz v. Borough of W. Wildwood, the plaintiff filed an action under Section 1983 

against the mayor and a police officer. 438 F. Supp. 2d 504, 504-10 (D.N.J. 2006). The plaintiff 

had begun an investigation of a police officer and mayor. As tensions between the parties grew, 

the mayor and the police officer contacted the prosecutor and held a meeting to discuss the 

necessary elements to bring an action for stalking against the plaintiff. Id. at 508B09. After that 

meeting, they called a judge to obtain a warrant for the plaintiff=s arrest. Id. at 509. The District 

Court denied summary judgment for the defendants, and ruled that the defendants were acting 

under the color of law. Id. at 510. The Court reasoned that private citizens do not have such ease 

of access to the County Prosecutor's Office or judges at any time, and certainly not after-hours. 

Id. at 509. Further, the court found that, in a citizen's complaint of stalking or harassment, a 

private citizen makes a complaint to law enforcement officers who may thereafter contact the 

county prosecutor. Id. at 510. But, unlike average citizens, the police officer and the mayor used 

their authority as law enforcement officials to contact the county prosecutor directly. Id. AAt the 

very least, they were acting simultaneously as private citizens and law enforcement officials at that 

time.@ Id. 

On one hand, the instant case appears to involve an individual and private matter that 

Defendant Bruns handled unrelated to his duty as a police officer, similar to that in Mark. See 51 

F.3d at 1151. On the other hand, it appears Defendant Bruns used his position as a State Trooper

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to utilize information that private citizens would not have access to in order to pursue his personal 

matter, much like in Pomykacz. Pomykacz v. Borough of W. Wildwood, 438 F. Supp. 2d 504, 

504-10 (D.N.J. 2006). 

The facts of this case are similar to Pomykacz. See id. Defendant Bruns was in fact 

pursuing a private matter; however, Defendant Bruns seriously misconstrues the allegations made 

in Plaintiff=s Complaint. Defendant Bruns argues that not a single paragraph of the Complaint

even remotely contends that Defendant Bruns= status as a police officer played the slightest role in 

the actions undertaken. (Def.’s Mot. Br. 13). Contrary to Defendant Bruns= statement, he 

managed to locate the Plaintiff using the NCIC, which he would not have had access to as a private 

citizen. (Am. Compl. ¶ 29). Further, upon reporting the Plaintiff=s car stolen, Defendant Bruns 

informed the Arizona law enforcement that the stolen Lincoln was in their jurisdiction, and asked 

them to recover the vehicle. (Am. Compl. ¶ 35). Defendant Bruns= actions arguably would not 

have been granted to private citizens pursuing a similar matter. The use of the NCIC, the contact 

with the Arizona officials, and their adherence to his request, afforded Defendant Bruns privileges 

that were granted to him only because of his official capacity as a State Trooper, as was the case for 

the defendants in Pomykacz. See Pomykacz, 438 F. Supp. 2d at 504–10. Accordingly, the Court 

denies Defendant Bruns= Motion to Dismiss the Section 1983 Claim. 

2. Section 1985(3) Claim

Under Section 1985(3), citizens can bring a cause of action for a conspiracy designed and 

intended to deny and deprive the plaintiff of his or her Constitutional rights. 42 U.S.C. ' 1985. 

The plaintiff must prove: 1) a conspiracy; 2) for the purpose of depriving, either directly or 

indirectly, a person or class of persons of the equal protection of the laws, or of equal privileges 

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and immunities under the laws; 3) an act in furtherance of the conspiracy; 4) an injury to a person 

or property or a deprivation of a right or privilege of a citizen of the United States; 5) that actions of 

the defendants were motivated by an invidiously discriminatory class-based animus. United 

Brotherhood of Carpenters and Joiners of Amer. Local 610 v. Scott, 463 U.S. 825, 828B29 (1971)

(hereinafter AUnited Brotherhood@); see Schnabel v. Bldg. & Const. Trades Council of 

Philadelphia & Vicinity, AFL-CIO, 563 F. Supp. 1030, 1039 (E.D. Pa. 1983). 

The failure to prove an element under Section 1985 is dispositive. United Brotherhood, 

463 U.S. at 834. In United Brotherhood, the nonunion construction employee plaintiffs, as well 

as the owner, brought action under Section 1985(3) against the defendants. Id. at 830. The 

defendants were union members, who assaulted the plaintiffs, and burned construction equipment 

on a nonunion project near Port Arthur, Texas. Id. at 827–28. The plaintiffs brought the Section

1985 claim alleging the deprivation of their First Amendment rights not to associate with a union. 

Id. at 830. The Supreme Court ruled that Section 1985(3) does not reach conspiracies motivated 

by economic or commercial animus. Id. at 839. The Court reasoned that Section 1985(3) does 

not amount to an action of federal tort law based on the Congressional intent, the legislative 

history, and the text of the statute, all which require, Asome racial, or perhaps otherwise 

class-based, invidiously discriminatory animus behind the conspirators' action.@ Id. at 834.

In the present case, Defendant Bruns correctly asserts that there is no class based or racial 

animus alleged by Plaintiff. (Def.’s Mot. Br. 8). Plaintiff alleges that Defendants engaged in a 

reckless and malicious conspiracy to harass and falsely accuse, imprison and harm Plaintiff, but 

does not allege a class-based animus such as race. (Am. Compl. ¶ 73). Like the plaintiffs in 

United Brotherhood, Plaintiff has alleged nothing more than an economic or commercial conflict. 

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Section 1985(3) was not meant to provide a federal tort action without a class-based animus. 

Because Plaintiff=s Section 1985(3) claim shows no class-based animus or grounds for 

discrimination, it shall be dismissed. 

3. Section 1962 RICO Claim

Section 1962(d) provides, Ait shall be unlawful for any person to conspire to violate any of 

the provisions of subsection (a), (b), or (c) of this section.@ 18 U.S.C. ' 1962. Section 1962(c) 

states that it is unlawful for any person employed by or associated with any enterprise engaged in, 

or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly 

or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or 

collection of unlawful debt. 18 U.S.C. ' 1962(c). In H.J. Inc. v. Northwestern Bell Tel. Co., the 

Supreme Court held that a pattern of racketeering activity means a plaintiff or prosecutor must 

demonstrate at least two racketeering predicates in the past ten years, that are related and that 

amount to or threaten the likelihood of continued criminal activity. 492 U.S. 229, 239 (1989). 

Thus, to succeed on a claim under Section 1962(c), Plaintiff must allege: (1) conduct (2) of an 

enterprise (3) through a pattern (4) of racketeering activity. 18 U.S.C. ' 1962(c). An exhaustive 

list of Aracketeering activities@ appears in 18 U.S.C. ' 1961(1). United States v. Irizarry, 341 F.3d 

273 (3d Cir. 2003). Defendant alleges the second and fourth prongs of a Section 1962(c) claim 

are not met. 

The pattern of racketeering activities described in Section 1961 are, Amurder, kidnapping, 

gambling, arson, robbery, bribery, extortion . . . .@ 18 U.S.C. ' 1961(1)(A). Plaintiff does not 

allege a violation listed, but instead claims that Defendants= fraudulent acts included material 

misrepresentation and omissions designed to mislead government agencies and perpetuate 

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fraudulent prosecutions. Defendant Bruns argues that none of the specified crimes are applicable 

to this case, and Plaintiff=s RICO claim alleges other state law offenses that are not under the scope 

of Section 1961(1). See 18 U.S.C. § 1961(1). The law is well settled, that without a predicate 

act, plaintiff cannot possibly succeed on its federal and state RICO claims. Ideal Dairy Farms v. 

John Labatt, Ltd., 90 F.3d 737 (3d Cir. 1996).

In Ideal Dairy Farms, the plaintiff failed to make out a claim for wire fraud, and therefore 

had no recourse under Section 1962. Id. at 747. The plaintiff knew that defendant was not 

complying with a contract in dispute, and therefore the fraud claim could not be proven. Id. 

Thus, without an allegation of a listed violation under Section 1961, a claim under Section 1962

could not be supported. Id. Here, Plaintiff does not allege any enumerated misconduct listed in 

Section 1961 which substantiates a pattern of racketeering activity to support a violation of Section 

1962. Accordingly, Plaintiff’s claim fails, as did the claim in Ideal Dairy Farms, for a failure to 

demonstrate a pattern of racketeering activity. Accordingly, Defendant’s Motion to Dismiss with 

regards to the Section 1962 claim is granted, and Plaintiff’s Section 1962 claim is dismissed. 

4. Section 1030 Claim

Plaintiff=s Complaint alleges that: (1) Defendants knowingly and intentionally accessed the 

NCIC, a protected computer database authorized only to law enforcement, and through conduct 

unauthorized or in excess of their authority, (2) perpetuated fraudulent conduct, which resulted in a 

loss that threatened public health or safety. Defendant argues that the Federal Computer Fraud 

and Abuse Act provides no private cause of action for Plaintiff because Plaintiff’s remedy does not 

constitute damages listed. (Def.’s Mot. Br. 22). 

Under Section 1030, individuals face liability for unauthorized or fraudulent access to 

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protected computers. 18 U.S.C. ' 1030. The statute prohibits intentional unauthorized access of 

computer databases containing information from a department or agency of the United States. 18 

U.S.C. '1030(c). Further, Section 1030(g) limits private causes of action to any person who 

suffers damage or loss if the offense caused, among others, physical injury or a threat to public 

health or safety. 18 U.S.C. '1030(c)(4)(A)(i)(IV). Accordingly, Plaintiff must allege: (1) that 

access to the particular computer database was unauthorized or in excess of such access, and (2) as 

a result of the unauthorized access, there was a loss or damage. 18 U.S.C. '1030. 

Section 1030(e)(11) defines “loss” as, “any reasonable cost to any victim, including the 

cost of responding to an offense, conducting a damage assessment, and restoring the data, 

program, system, or information to its condition prior to the offense, and any revenue lost, cost 

incurred, or other consequential damages incurred because of interruption of service.” 18 U.S.C.

§ 1030. Based on the plain language of the statute, Plaintiff has failed to allege loss or damages 

under Section 1030. Therefore, Plaintiff’s Section 1030 claim is dismissed. 

Thus, the Court grants Defendant’s Motion to Dismiss with regards to the Section 1985, 

Section 1962, and Section 1030 claims. Those claims are accordingly dismissed. The Court 

denies Defendant’s Motion to Dismiss with regards to the Section 1983 Claim.

IV. CONCLUSION

For the foregoing reasons expressed herein, Defendant’s Motion to Vacate Entry of 

Default is granted; Defendant’s Motion to Dismiss is granted in part and denied in part. 

S/ Dennis M. Cavanaugh 

Dennis M. Cavanaugh, U.S.D.J.

Date: March 26 , 2013

cc: All Counsel of Record

Joseph A. Dickson, U.S.M.J.

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