Free Response to Motion - District Court of Delaware - Delaware

Case 1:06-cv-00734-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

WILLIAM JOSEPH WEBB, JR., Plaintiff, v. MINNER, et. al., Defendants.

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C. A. No. 06-734-GMS JURY TRIAL REQUESTED

OPPOSITION TO MOTION FOR DEFAULT JUDGMENT Defendant Raphael Williams, by and through undersigned counsel, hereby opposes Plaintiff's Motion for Default Judgment. (D.I.24). In support of his position, Defendant Raphael Williams states the following: 1. Plaintiff William J. Webb, Jr. ("Plaintiff") is an inmate incarcerated at the

Delaware Correctional Center in Smyrna, Delaware ("DCC"). 2. On December 5, 2006, Plaintiff filed a complaint pursuant to 42 U.S.C.

1983 against various State of Delaware officials, alleging that the water system at the Howard R. Young Correctional Institution ("HRYCI") is contaminated with lead. D.I.2. 3. The Complaint was dismissed sua sponte by the Court on May 4, 2007.

D.I.10. Plaintiff was given leave to amend his complaint within 30 days. Id. 4. Plaintiff then filed an amended complaint, which was docketed on May

31, 2007. D.I.11. 5. On October 30, 2007, the Court reviewed the Plaintiff's amended

complaint and dismissed five of the named defendants sua sponte. D.I.14. Plaintiff was

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directed to return USM 285 Marshall forms to the Clerk of Court. 6. On December 21, 2007, the Clerk of Court made a docket entry that the

USM 285 form had been returned executed as to Defendant Raphael Williams. D.I.17. Subsequently, on January 9, 2008, the Clerk of Court entered D.I.19, stating that Defendant Raphael Williams' USM 285 form was returned unexecuted. 7. At the time that the USM 285 form was deemed executed for Raphael

Williams, 204 days had passed from the time Plaintiff filed his Amended Complaint. 8. On April 4, 2008, Plaintiff filed a Motion for Default Judgment as to

Defendant Raphael Williams. D.I.24. In his Motion, Plaintiff asks for a minimum of $2.2 million in damages. Plaintiff articulates no basis for this inflated number. 9. Defendant Raphael Williams answered the Amended Complaint on April

11, 2008. D.I.25. He has not waived service. 10. Due to noncompliance with Rule 4(m), and the docket's indication that

Defendant Raphael Williams' service is defective, a motion for default judgment should not be entertained because personal jurisdiction over the nonmoving party has not been established. "It is fundamental that before a court may impose upon a defendant a personal liability or obligation in favor of the plaintiff...it must have first obtained jurisdiction over the person of the defendant." Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 (3d Cir. 1996). 11. Service upon a defendant is not a "technical nicety." Id at 567. "The

failure of a plaintiff to obtain valid process from the court to provide it with personal jurisdiction over the defendant in a civil case is fatal to the plaintiff's case.... A district court must not only have subject matter jurisdiction over the litigation before it, but also

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personal jurisdiction over the defendants." Id at 569. 12. The Third Circuit Court of Appeals held in Ayres v. Jacobs & Crumplar

that "good cause" must be shown for a plaintiff's failure to comply with the 120 day time limit dictated by Fed. R. Civ. P. 4(m). "[I]nadvertence, `half-hearted' efforts, and misplaced reliance does not constitute good cause." Id. (internal citations omitted). Plaintiff has not demonstrated good cause for his failure to comply with Rule 4(m). 13. Moreover, although the docket reflects that Defendant Raphael Williams'

USM 285 form was returned unexecuted, the Defendant has now filed an Answer. Therefore, Plaintiff's basis for filing for default judgment is moot. A default judgment is disfavored where a decision on the merits can be reached. Harad v. Aetna Ca. and Ins. Co., 839 F.2d 979, 982 (3d Cir.1988). WHEREFORE, based upon the reasons set forth above, Defendant respectfully requests that the Court deny Plaintiff's motion for default judgment.

STATE OF DELAWARE DEPARTMENT OF JUSTICE

/s/ Catherine Damavandi Catherine Damavandi, I.D. No. 3823 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302) 577-8400 [email protected] Attorney for Defendant Raphael Williams DATE: April 18, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM JOSEPH WEBB, JR., Plaintiff, v. MINNER, et. al., Defendants. ) ) ) ) ) ) ) ) )

C. A. No. 06-734-GMS JURY TRIAL REQUESTED

ORDER AND NOW, this day of , 2008, upon consideration of

Defendant Raphael Williams's Opposition to Plaintiff's Motion for Default Judgment, IT IS HEREBY ORDERED that Plaintiff's Motion is DENIED.

_______________________________ United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM JOSEPH WEBB, JR., Plaintiff, v. MINNER, et. al., Defendants. ) ) ) ) ) ) ) ) )

C. A. No. 06-734-GMS JURY TRIAL REQUESTED

CERTIFICATE OF SERVICE I hereby certify that on April 18, 2008 I electronically filed Defendant Raphael Williams' Opposition to Plaintiff's Motion for Default Judgment with the Clerk of Court using CM/ECF. I further certify that on April 18, 2008, I caused the within document to be mailed to the following non-registered participant by United States Postal Service: William J. Webb, Jr., SBI#256056 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ Catherine Damavandi Deputy Attorney General, ID #3823 Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendant Raphael Williams