Opinion
Civil No. 2005-7.
April 6, 2009
Anna H. Paiewonsky, Esq., St. Thomas, U.S.V.I. For the Plaintiffs. Cassandra Lovell a/k/a Cassandra Maureen Lovell Pro se defendant. Tom Gigilotti, Pro se defendant.
ORDER
Banco Popular De Puerto Rico ("Banco Popular") commenced this debt and foreclosure action in January 2005 against Cassandra Lovell a/k/a Cassandra Maureen Lovell ("Lovell"), Tom Gigilotti ("Gigilotti") and Magen's Ridge Condominium Association ("MRCA").
Lovell and Gigilotti failed to appear within the time required by law. At Banco Popular's request, default was entered against Lovell and Gigilotti in July 2005.
In October 2005, Banco Popular moved for summary judgment against MRCA and for default judgment against Lovell and Gigilotti. That motion is pending.
In September 2006, Chad Nunez and Vanessa Nunez (the "Plaintiffs"), filed a notice of substitution of real party in interest, asserting that they had acquired Banco Popular's mortgage.
In December 2008, the Plaintiffs and MRCA stipulated to the dismissal of MRCA, asserting that MRCA's lien on Lovell and Gigilotti's condominium unit had been satisfied. The Court thereafter dismissed MRCA from this matter.
The Plaintiffs now move to amend their motion for summary judgment and for default judgment. It is unclear why the Plaintiffs seek to amend their previous motion to the extent that motion seeks summary judgment against MRCA. As noted above, MRCA has already been dismissed from this matter. The Court thus construes the motion to amend to pertain only to that portion of the previous motion that seeks default judgment against Lovell and Gigilotti.
In fact, the motion purports to seek to amend only an earlier-filed motion for summary judgment. It is clear, however, that the Plaintiffs seek to amend their October 2005 motion for summary judgment and for default judgment.
Federal Rule of Civil Procedure 55(b)(2) allows courts to enter a default judgment against a properly served defendant who fails to file a timely responsive pleading. Anchorage Assoc. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n. 9 (3d Cir. 1990). That rule further provides that "no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein." Fed.R.Civ.P. 55(b)(2); see also Murphy v. C.W., 158 Fed. Appx. 393, 396 (3d Cir. 2006) (not precedential). Furthermore, a party moving for default judgment must establish with competent evidence that the defaulting party is not in the United States military. See 50 U.S.C. app. § 521(b)(1); see also Bank of N.S. v. George, Civ. No. 2004-105, 2008 U.S. Dist. LEXIS 11786, at *4 (D.V.I. Feb. 15, 2008).
Here, the Plaintiffs have failed to meet their burden of showing that default judgment is appropriate. They have not provided competent evidence that Lovell and Gigilotti are not infants or incompetent persons. The Plaintiffs also have not shown that Gigilotti is not in the military. Those deficiencies are fatal. See, e.g., Ross v. Baker, Civ. No. 06-111, 2006 U.S. Dist. LEXIS 77216, at *4 (W.D. Mich. Oct. 23, 2006) (denying a default judgment motion where the "[p]laintiffs have not tendered an affidavit stating . . . that the defendant is not an infant or incompetent person"); United States v. Simmons, 508 F. Supp. 552, 552-53 (E.D. Tenn. 1980) (denying the plaintiff's motion for a default judgment because the plaintiff failed to provide a sufficient affidavit showing that the defendant was not in military service).
For the foregoing reasons, it is hereby
ORDERED that the Plaintiffs' motion for default judgment is DENIED without prejudice.