UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY

David Polifroni, 

 

 Plaintiff, 

 

 v. 

Commercial Recovery Systems, Inc., 

 Defendant. 

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: OPINION

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: Civ. No. 11-03362 (WHW) 

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Walls, Senior District Judge 

 Plaintiff David Polifroni moves for default judgment under Federal Rule of Civil 

Procedure 55(b)(2) on his claim against Commercial Recovery Systems for violations of the Fair 

Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (the “FDCPA”). Because Mr. Polifroni 

has not demonstrated that Commercial Recovery Systems was properly served with the 

Summons and Complaint, the motion for default judgement is denied. Pursuant to Federal Rule 

of Civil Procedure 4(m), the Court sua sponte directs Mr. Polifroni to show cause no later than 

September 14, 2012 why this action should not be dismissed for failure to effect proper service 

on defendant Commercial Recovery Systems. During this period, the Court will extend the 

deadline under Federal Rule of Civil Procedure 4(m) to allow Mr. Polifroni an opportunity to 

validly serve Commercial Recovery Systems. 

FACTUAL AND PROCEDURAL BACKGROUND 

Beginning in February 2011, Commercial Recovery Systems’ employees Regina Bell and 

Skylar Jackson allegedly contacted Mr. Polifroni to collect an unspecified debt. Compl. ¶¶ 17–18. 

Mr. Polifroni claims that these employees called him continuously over a period of several 

weeks on his home, work, and cellular numbers and allowed the phone to ring repeatedly or 

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continuously when he did not answer. Id. ¶¶ 19–22. He maintains that Regina Bell left voicemails 

that conveyed a false sense of urgency and that she used abusive, threatening, and profane language 

in later telephone conversations. Id. ¶¶ 23–28. Skylar Jackson, who introduced himself as an attorney 

for Commercial Recovery Systems, also allegedly made threatening and abusive telephone calls to 

both Mr. Polifroni and his wife. Id. ¶¶ 29–37. Despite Jackson’s threats that the company would be 

taking legal action against Mr. Polifroni, Commercial Recovery has not done so and has not 

notified Mr. Polifroni of his rights and privileges as a debtor. Id. ¶¶ 41–43.

On June 10, 2011, Mr. Polifroni filed the present action claiming that Commercial 

Recovery Systems violated several provisions of the FDCPA. He argues that the pattern and 

substance of the telephone calls constituted harassment and abuse prohibited under 15 U.S.C. § 

1692d. Id. ¶ 48. During the calls, he also alleges that Commercial Recovery Systems’ employees 

made false, deceptive, and misleading representations to him in violation of 15 U.S.C. § 1692d. 

Id. He further contends that these practices were unfair or unconscionable methods of collecting 

the debt under 15 U.S.C. § 1692f. Id. Finally, Commercial Recovery Systems allegedly failed to 

provide the written notification required within five days of its initial communication under 15 

U.S.C. § 1692g. Id. Under 15 U.S.C. § 1692k, Mr. Polifroni seeks the maximum statutory 

damages of $1,000 as well as costs and attorney fees. Mot. for Default J. 6. 

On February 20, 2012, Mr. Polifroni requested and the Clerk made an entry of default 

against Commercial Recovery Systems for its failure to appear. After the Clerk entered a notice 

of call for dismissal pursuant to Local Civil Rule 41.1 on June 7, 2012, Mr. Polifroni moved for 

default judgment under Federal Rule of Civil Procedure 55(b) on June 21, 2012. Commercial 

Recovery Systems has not responded to the motion for default judgment. The motion is decided 

without oral argument pursuant to Federal Rule of Civil Procedure 78(b). 

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STANDARD OF REVIEW

Federal Rule of Civil Procedure 55 governs the entry of default and default judgment. 

The power to grant default judgment “has generally been considered an inherent power, 

governed not by rule or statute but by the control necessarily vested in courts to manage their 

own affairs so as to achieve the orderly and expeditious disposition of cases.” Hritz v. Woma 

Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (quotation omitted). Because default judgment 

prevents a plaintiff’s claims from being decided on the merits, “this court does not favor entry of 

defaults or default judgments.” United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 

(3d Cir. 1984). Accordingly, the Third Circuit has clarified that, while “the entry of a default 

judgment is left primarily to the discretion of the district court,” this “discretion is not without 

limits.” Hritz, 732 F.2d at 1181. Cases should be “disposed of on the merits whenever 

practicable.” Hritz, 732 F.2d at 1181. See also $55,518,05 in U.S. Currency, 728 F.2d at 194–95. 

The Third Circuit has explained that three factors control whether a default judgment 

should ultimately be granted: “(1) prejudice to the plaintiff if default is denied, (2) whether the 

defendant appears to have a litigable defense, and (3) whether defendant’s delay is due to 

culpable conduct.” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). In deciding a 

motion for default judgment, “the factual allegations in a complaint, other than those as to 

damages, are treated as conceded by the defendant.” DIRECTV, Inc. v. Pepe, 431 F.3d 162, 165 

(3d Cir. 2005). The court must, however, make “an independent inquiry into whether the 

unchallenged facts constitute a legitimate cause of action” and reach an “independent 

determination” regarding questions of law. Days Inns Worldwide, Inc. v. Mayu & Roshan, 

L.L.C., No. 06-1581, 2007 WL 1674485, at *4 (D.N.J. June 8, 2007) (citations omitted). 

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DISCUSSION 

 In order to establish personal jurisdiction over a defaulting defendant, the court must find 

that the party was properly served with the summons and complaint or that the party waived this 

service requirement pursuant to Federal Rule of Civil Procedure 4. See Gold Kist v. Laurinburg 

Oil Co., 756 F.2d 14, 19 (3d Cir. 1985) (setting aside as void a default judgment where the 

district court lacked personal jurisdiction over the defendant based on improper service). Where 

the party is a corporation, Federal Rule of Civil Procedure 4(h)(1)(B) provides for service in the 

United States “by delivering a copy of the summons and of the complaint to an officer, a 

managing or general agent, or any other agent authorized by appointment or by law to receive 

service of process and – if the agent is one authorized by statute and the statute so requires – by 

also mailing a copy of each to the defendant.” Alternatively, by reference to Federal Rule of 

Civil Procedure 4(e)(1) for individuals, Federal Rule of Civil Procedure 4(h)(1)(A) provides for 

service of corporations “following state law for serving a summons in an action brought in courts 

of general jurisdiction in the state where the district court is located or where service is made.” 

Where service is contested, “the party asserting the validity of service bears the burden of proof 

on that issue.” Grand Entm’t Grp. v. Star Media Sales, 988 F.2d 476, 488 (3d Cir. 1993). In 

proving that a corporate defendant was validly served, the plaintiff must demonstrate that an 

alleged agent had authority to accept personal service on its behalf. Gottlieb v. Sandia Am. 

Corp., 452 F.2d 510, 514–15 (3d Cir. 1971). 

 Mr. Polifroni contends only that he “perfected service upon Defendant by serving the 

Summons and a copy of the Complaint” on July 29, 2011. Mot. for Default J. 1. He generally 

cites the Return of Service for Commercial Recovery Systems filed on October 7, 2011. Id.; Req. 

for Default by David Polifroni against Commercial Recovery Systems, Inc. ¶ 2, ECF No. 6. In 

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this Return of Service, the process server Andrew Harris declared that he had personally served 

the Summons and Complaint on Wade Thunhorst on July 29, 2011. Summons Returned 

Executed, ECF No. 4, at 2. Harris identified Mr. Thunhorst as Commercial Recovery System’s 

“(CFO) Chief Financial Officer.” Id. at 2. Although the Summons listed the address for 

Commercial Recovery Systems as “8035 E R L Thornton Fwy” in Dallas, Texas, the Return of 

Service indicated that Mr. Thunhorst was served at “7222 Arbor Oaks” in Dallas. Id. at 1–2. 

 In a letter dated July 31, 2011, Mr. Thurhorst notified Mr. Polifroni’s counsel and the 

Court that he was not authorized to accept service on behalf of Commercial Recovery Systems. 

Letter from Wade Thunhorst, ECF No. 3. Although Mr. Thunhorst acknowledged that he “once 

served as the Registered Agent and the General Counsel” for Commercial Recovery Systems, he 

stated that he “resigned both positions more than five years ago.” Id. He directed Mr. Polifroni’s 

counsel to the website of the Secretary of State of Texas for information on Commercial 

Recovery Systems’ current Registered Agent and to the State Bar of Texas website for 

information on his current professional position. Id. Mr. Thunhorst further indicated that he had 

“no affiliation with this corporation” since his resignation and was “not authorized to accept 

service on its behalf or otherwise speak for it in this or any other matter.” Id. He also described 

being served at his personal home rather than at Commercial Recovery Systems’ place of 

business and provided a home address that is consistent with the Return of Service. Id. 

Based on Mr. Thunhorst’s representation that he is no longer employed by Commercial 

Recovery Systems, the Court cannot find that he was authorized as an officer of the corporation 

to personally accept service on its behalf at his home. Mr. Polifroni does not advance any legal 

basis for Mr. Thunhorst’s authority to accept service and cites only the Return of Service for the 

representation that Mr. Thunhorst is Commercial Recovery Systems’ CFO. Certif. of Amy L. 

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Bennecoff, Esq. in Supp. of Pl.’s Request to Enter Default Against Def. ¶ 4, ECF No. 6-1. 

Although Mr. Polifroni apparently relies on Mr. Thunhorst’s position as an officer to establish 

his authority to accept service under Federal Rule of Civil Procedure 4(h)(1)(B), Mr. Polifroni 

does not challenge Mr. Thunhorst’s representation to the Court that he is no longer an officer or 

even an employee of Commercial Recovery Systems. Mr. Polifroni also provides no alternative 

basis for the Court to find that Mr. Thunhorst continues to serve as an agent appointed or 

otherwise authorized under state or federal law to accept service on Commercial Recovery 

Systems’ behalf. Based on this record, the Court finds that Mr. Polifroni has failed to meet his 

burden of establishing for the purposes of the motion for default judgment that the defaulting 

defendant here was validly served. 

Based on Mr. Polifroni’s failure to demonstrate that Commercial Recovery Systems was 

properly served for purposes of the motion for default judgment, the Court will also consider sua 

sponte the adequacy of service for purposes of maintaining the present action. The Complaint in 

this matter was filed more than a year ago on June 11, 2011. Under Federal Rule of Civil 

Procedure 4(m), if the defendant is not served within 120 days after the complaint is filed and 

does not waive the service requirement, a district court “must dismiss the action without 

prejudice against that defendant or order that service be made within a specified time.” The court 

may do so either “on motion or on its own after notice to the plaintiff.” 

In order to afford Mr. Polifroni adequate notice, this Court will allow Mr. Polifroni until 

September 14, 2012 to either validly serve the defendant Commercial Recovery Systems or 

otherwise show cause why the Court should not dismiss this action for his failure to effect valid 

service. Accordingly, the Court will extend the deadline for effecting service until September 14, 

2012 and allow Mr. Polifroni an opportunity to take additional steps to validly serve Commercial 

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Recovery Systems even though the 120 day period has expired. Alternatively, Mr. Polifroni must 

demonstrate to the Court no later than September 14, 2012 that personal service on Mr. 

Thunhorst was a valid means of serving Commercial Recovery Systems. 

CONCLUSION 

Because the Court finds that Mr. Polifroni has not demonstrated that the defaulting 

defendant Commercial Recovery Systems was properly served with the Summons and 

Complaint under Federal Rule of Civil Procedure 4, the Motion for Default Judgment (ECF No. 

8) is denied. Pursuant to Federal Rule of Civil Procedure 4(m), the Court directs that Mr. 

Polifroni must either properly effect service on defendant Commercial Recovery Systems or 

otherwise show cause why this action should not be dismissed no later than September 14, 2012. 

July 24, 2012 

/s/ William H. Walls 

United States Senior District Judge

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