Kenneth Hill v. Williamsport Police Dept.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4530
KENNETH HILL,
Appellant
v.
WILLIAMSPORT POLICE DEPT.;
CITY OF WILLIAMSPORT; MICHAEL HOOVER
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 00-cv-00593)
District Judge: Honorable Malcolm Muir
Argued August 1, 2002
Before: ROTH, RENDELL and AM BRO, Circuit Judges
(Opinion filed: April 16, 2003 )
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Mark Jaffe, Esquire (Argued)
Timothy R. Hough, Esquire
Jaffe & Hough
15th & John F. Kennedy Boulevard
1907 Two Penn Center Plaza
Philadelphia, PA 19102
Attorneys for Appellant
Frank J. Lavery, Jr., Esquire
James D. Young (Argued)

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Lavery, Faherty, Young & Patterson
225 Market Street - Suite 304
Harrisburgh, PA 17101
Attorneys for Appellees
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OPINION
AM BRO, Circuit Judge
Kenneth Hill contends on appeal that the District Court abused its discretion when
it refused to grant him a default judgment in his 42 U.S.C. § 1983 action against the City
of Williamsport, Pennsylvania, the Williamsport Police Department, and Officer Michael
Hoover. Because we must follow our Court’s precedent in Chamberlain v. Giampapa,
210 F.3d 154, 164 (3d Cir. 2000), and because Hill has not shown that the District Court
abused its discretion in following Chamberlain’s three-part test, we affirm.
I.
On March 16, 1998, a Williamsport police officer arrested Hill for marijuana
possession after a traffic stop. Another officer, Officer Hoover, took Hill away for
processing in a police vehicle marked as Unit 67. Hoover searched the vehicle’s back
seat to ensure it was clear of contraband before transporting him. No one aside from Hill
had access to the back seat of Unit 67 between Hill’s entering the vehicle and the end of
Hoover’s shift. Hoover did not, however, search the vehicle’s back seat at the end of his
shift. The next officer to use Unit 67 found 69 “straws” of crack cocaine under its back
seat when he began his shift. As a result, Hill was charged with offenses related to the
crack cocaine. The prosecutor voluntarily withdrew these charges when Hill pled guilty

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1 Rule 41(a)(1)(ii) provides that “an action may be dismissed by the plaintiff without
order of court by filing a stipulation of dismissal signed by all parties who have appeared
in the action.” The Rule further provides that “[u]nless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without prejudice.”
2 As part of the stipulation the defendants agreed to waive their claim that Hill’s appeal
of the July 5 order was untimely if he appealed within thirty days of the stipulation, which
he did.
to twelve other counts unrelated to the drugs found in Unit 67.
On March 31, 1998, Hill brought the current action, alleging Hoover planted the
crack cocaine. Hill served his complaint on the City and the Police Department on April
7, 2000, and served Hoover six days later. Apparently because of an administrative error,
the defendants did not file their answer to Hill’s complaint until July 7, 2000.
On June 2, 2000, Hill moved for a default judgment under Federal Rule of Civil
Procedure 55(b)(2). In doing so, Hill did not explain how he might be prejudiced if the
District Court did not grant his request or provide any evidence that the defendants acted
willfully or recklessly in failing to respond to his complaint. On July 5, 2000, the Court
denied Hill’s motion.
On May 8, 2001, the District Court entered summary judgment in favor of the City
and the Police Department on all of Hill’s claims, and entered summary judgment in favor
of Hoover on all claims except those in Count I of the complaint. On November 30,
2001, the remaining claims against Hoover were voluntarily dismissed pursuant to a
stipulation under Federal Rule of Civil Procedure 41(a)(1)(ii).1 The stipulation provides
that these claims are dismissed with prejudice unless Hill successfully appealed the July 5
order,2 in which case the dismissal is without prejudice. Hill filed his notice of appeal on

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December 26, 2001.
II.
As noted, the Rule 41(a)(1)(ii) stipulation left open the possibility that, if Hill
prevailed on appeal, he could pursue his remaining claims against Hoover. At oral
argument, however, Hill agreed that these claims should be deemed dismissed with
prejudice. Hill’s statement rendered the District Court’s order final, giving us jurisdiction
to hear his appeal under 28 U.S.C. § 1291.
Thus we consider whether the District Court abused its discretion in denying Hill’s
request for default judgment against the defendants. See Chamberlain, 210 F.3d at 164.
Our 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), as it prefers
adjudications on the merits. See Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir.
1984) (noting that “we have repeatedly stated our preference that cases be disposed of on
the merits whenever practicable”); see also Gross v. Stereo Component Sys., Inc., 700
F.2d 120, 122 (3d Cir. 1983); Tozer v. Charles A. Krause Mill. Co., 189 F.2d 242, 245
(3d Cir. 1951). “Three factors control whether a default judgment should 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, 210 F.3d at 164 (citing $55,518.05 in U.S. Currency, 728 F.2d at 195). As
our concurring colleague points out, Chamberlain, perhaps counterintuitively, applies this
three-part test to the motion seeking a default judgment whereas the case on which
Chamberlain relies – $55,518.05 in U.S. Currency – sets out the test in the context of a

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3Indeed, both major treatises on federal practice and procedure, as well as the Ninth
Circuit, set out additional factors to those listed in Chamberlain as appropriate for
consideration when ruling on motions to grant default judgments. 10A Charles A.Wright
et al., Federal Practice and Procedure § 2685 (3d ed. 1998) (noting that “[i]n
determining whether to enter a default judgment, the [District Court] is free to consider a
number of factors that may appear from the record before it,” including: the amount of
money potentially involved; whether material issues of fact or issues of substantial public
importance are at issue; whether the default is largely technical; whether plaintiff has
been substantially prejudiced by the delay involved; whether the grounds for default are
clearly established or are in doubt; how harsh an effect a default judgment might have;
whether the default was caused by a good-faith mistake or by excusable or inexcusable
neglect on the part of the defendant; if plaintiff has engaged in a course of delay or has
sought numerous continuances; and whether the court later would be obliged to set aside
the default on defendant's motion); 6 James Wm. Moore et al., Moore’s Federal Practice
§ 55-20[2][b] (3d ed. 1999) (listing factors that may be considered by courts in exercising
discretion in entering a default judgment as including: (1) the possibility of prejudice to
the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the
complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute
concerning material facts; (6) whether the default was due to excusable neglect; and (7)
the strong policy of the Federal Rules of Civil Procedure favoring decisions on the
merits). Accord Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986)(citing the factors
noted in Moore’s Federal Practice).
motion to overturn a default judgment.3 Whatever the merits of transposing the
$55,518.05 in U.S. Currency test to Chamberlain’s facts, our Internal Operating
Procedures require that we follow Chamberlain pending en banc review and reversal.
I.O.P. 9.1. Thus our panel follows Chamberlain. The District Court of course had no
choice but to do the same.
Following this path of analysis, Hill’s appeal loses steam. As noted above, Hill
did not demonstrate how he would be prejudiced without a default judgment. Indeed,
there is no record evidence indicating prejudice to him. Cf. Gross, 700 F.2d at 123
(setting aside default judgment where “plaintiff [did] not suggest that ‘its ability to

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4 The District Court noted as a reason supporting its ruling that Hill did not comply
with Middle District Local Rule 7.2, which provides that “[t]he movant and respondent
shall serve copies of their respective papers upon the opposing party at the time such
papers are filed with the clerk,” because he did not file a certificate of service along with
his motion for a default judgment. The Court’s application of Local Rule 7.2 conflicts
with Federal Rule of Civil Procedure 5(a), which governs when service is required. Rule
5(a) provides in pertinent part that “[n]o service need be made on parties in default for
failure to appear.” Because Local Rule 7.2 imposes a tougher service requirement than
Fed. R. Civ. P. 5(a), the Court should not have relied on it, as district courts cannot apply
local rules in a manner inconsistent with federal rules. See Anchorage Assocs. v. Virgin
Islands Bd. Of Tax Review, 922 F.2d 168, 173 (3d Cir. 1990).
At oral argument, Hill’s counsel advised us that he thought the District Court’s
reliance on Local Rule 7.2 was harmless error, and we agree.
pursue the claim has been hindered since the entry of the default judgment,’ by loss of
evidence or otherwise”) (quoting Feliciano v. Reliant Tooling Co., 691 F.2d 653, 657
(3d Cir. 1982)). Because the defendants had not yet filed an answer, the District Court
was unable to evaluate whether they had a litigable defense; the second factor was hence
inconclusive. With respect to the third factor, culpable conduct “is conduct that is ‘taken
willfully or in bad faith.’” Chamberlain, 210 F.3d at 164 (quoting Gross, 700 F.2d at
124). Hill offered no reason to believe that the defendants acted willfully or in bad faith,
and there is nothing in the record suggesting the defendants were more than negligent.
See Hritz, 732 F.2d at 1183 (stating that “negligence alone cannot sustain a default
judgment”). Thus two of the three Chamberlain factors (prejudice and culpable conduct)
suggest Hill should not have been granted a default judgment, and one factor (litigable
defense) is inconclusive. In this context, we cannot say that the District Court’s refusal to
enter a default judgment was an abuse of discretion.4
CONCLUSION
For these reasons, we affirm the District Court’s refusal to grant Hill a default

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judgment.
TO THE CLERK:
Please file the foregoing Not Precedential Opinion.
By the Court,
/s/ Thomas L. Ambro
Circuit Judge

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RENDELL, Circuit Judge, Concurring
Although I concur in the reasoning and result in our opinion based on the facts
before us, I write separately to note that there is reason to reconsider our conclusion in
Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000), that the three-factor default
rule employed here is applicable not only when a motion to set aside a default judgment
has been filed, but also initially, when a plaintiff seeks the entry of default judgment
when the defendant fails to answer. Although we stated in Chamberlain that the test
applies to both situations, we cited for that proposition our decision in United States v.
$55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984), a case that involved the
setting aside of a default judgment, a situation clearly distinguishable from a plaintiff’s
initial request for default judgment under Rule 55(b).
I am concerned that in Chamberlain we may have unwittingly imposed an
unrealistic and misplaced burden on plaintiffs, and unduly constrained the discretion of
district courts. For instance, it makes little sense for a plaintiff to be required to
demonstrate that the defendant does not have meritorious defenses when the defendant
has failed to respond. As I see it, a defendant moves to set aside the default judgment
because it asserts it has meritorious defenses.
Recently, the Court of Appeals for the Eighth Circuit addressed directly whether
its version of the three-factor test was applicable when reviewing a district court’s initial
decision to enter a default judgment. Forsythe v. Hales, 255 F.3d 487 (8th Cir. 2001).
The court held that it “need not apply” the three-factor test because that standard applies
only when reviewing a district court’s refusal to set aside a default judgment order, and,

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in the case before them, the defendants had not in fact moved to set aside the default
judgment. Id. at 490. Instead, the court concluded, it “must consider only whether the
district court abused its discretion in entering default judgment.” Id.
Similarly, as footnote three of our opinion indicates, there is persuasive authority
for the proposition that these decisions should be left wholly within the sound discretion
of the district courts, taking into consideration a broad set of factors. This seems an
eminently reasonable position; particularly given the variety of facts and circumstances
that district courts routinely encounter, I see little reason to constrain their discretion on
these matters to the consideration of three specific factors only.
While the plaintiff here has not specifically questioned our precedent in this
regard, I, for one, would be in favor of the en banc court’s revisiting it. I doubt that there
will be many opportunities to address this issue, given the lack of finality in most such
situations.
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