GOVERNMENT EMPLOYEES INSURANCE CO. et al v. HAMILTON HEALTHCARE CENTER, P.C. et al, No. 3:2017cv00674 - Document 51 (D.N.J. 2018)
Court Description: OPINION filed. Signed by Judge Anne E. Thompson on 5/24/2018. (mmh)
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GOVERNMENT EMPLOYEES INSURANCE CO. et al v. HAMILTON HEALTHCARE CENTER, P.C. et al ' .. Doc. 51 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY GOVERNMENT EMPLOYEES INSURANCE CO., GEICO INDEMNITY CO., GEICO GENERAL INSURANCE COMPANY, and GEICO CASUALTY co., I I I I I I v. I HAMILTON HEALTH CARE CENTER I I P.C., BARRY FASS, M.D., DAVIDE. SMITH, M.D., STEPHAN KOSMORSKY, I D.O., NOLA T. MAHONEY, D.O., JOHN Plaintiffs, Civ. No. 17-0674 OPINION I J. MAHONEY, D.O., ANTHONY F. PIERRO, D.C., STEPHEN M. LYCHOCK, I D.C., ALEXANDER J. KISHYK, D.C., GARDEN STATE MAGNETIC IMAGING, L.L.C., REHAN ZUBER!, 1 NAZISH KHAN a/k/a NASH KHAN, ! TARIQ DIN, FAIZAH ZUBER!, M.D., I I I j Defendants. I THOMPSON, U.S.D.J. This matter comes before the Court upon the motion by Defendant ("Defendant Khan") to vacate the order for substituted service, the entry of Khan judgment. (ECF No. 47.) Plaintiffs Government Insurance Co., GEICO default GEICO General Insurance Co., and GEICO Casualty Co. (collectively, "Plaintiffs") ' (ECF No. ,1 48.) The Court has decided these Motions based upon the written submissions of the parties pursuant to Local Civil Rule 78.l(b). For the reasons set forth below, DefendantlKhan's Motion 11 is denied. 1 1 1 Dockets.Justia.com BACKGROUND This case arises out of an alleged insurance fraud scheme, whereby all De endants in this action made fraudulent insurance charges and claims for the fraudulent provision medical services. Garden State Magnetic Imaging, LLC ("GSMI'') is an ambulatory care facility I c providing radiology services, which Plaintiffs have alleged to be owned and operdted by ,I Defendants Faizah Zuberi, Nazish Khan, and Tariq Din. (Compl. W83, 85, 88-89, ECF No. 1.) Hamilton Healthcare, P.C., is a medical professional corporation that also medically unnecessary exams, testing, pain management, treatment, and other services. (/d.1/mf 4(i), 132i I 36.) GSMI and Hamilton Healthcare shared an illegal kickback scheme. (Id. ifif Plaintiffs filed this lawsuit on January 31, 2017. (ECF No. 1.) Plaintiffs Hamilton Healthcare, physicians at Hamilton Healthcare, GSMI, and those associated with be ownership ' ii and control of GSMI. (Compl. if 4.) The Complaint included twelve causes of \ Plaintiffs I attempted regular service on all Defendants. (See ECF No. 3.) After these servicF attempts, 'I Plaintiffs moved the Magistrate Judge, the Honorable Douglas E. Arpert, for service for Defendants Rehan Zuberi and Khan. (ECF No. 19.) Judge Arpert granted PlJintiffs' motion cf I and permitted substituted service on Defendant Khan by service upon Philip J. hen, Esq., of Kamensky, Cohen & Richelson, P.C., her counsel in a recent Mercer County lawkuit. (ECF No. 22.) After receiving no response, Plaintiffs requested and the Clerk entered defatlt against Nazish Khan on August 3, 2017. (ECF No. 29.) I On November 8, 2017, Plaintiff moved for default judgment against Defendants Faizah Zuberi, Rehan Zuberi, Nazish Khan, Tariq Din, and GSMI. (ECF No. 35.) In 1/ Defendant Khan cross-moved to vacate default on the basis of improper service and to deny 11 defaultjudgment (ECF Nos. 41, 43), and Plaintiffs replied (ECF No. 42). On Mrh 9, 2018, the 11 2 ;I i Court entered default judgment in favor of Plaintiffs against the defaulting Defeniants and denied Defendant Khan's cross.motion to vacate default. (ECF Nos. 45, 46.) Thi Court specifically found "no basis to vacate or set-aside default judgment for improper ,ervice of process." (Op. at 7, ECF No. 45.) On April 6, 2018, Defendant Khan moved the Court to vacate: (1) Judge Arpert' s order granting substituted service (ECF No. 22), (2) th1 entry of default by the Clerk of the Court (ECF No. 29), and (3) the entry of default judgrrient (ECF No. i 46). (See ECF No. 47.) On May 11, 2018, Defendant Khan submitted an additional letter addressing claims by Defendant Khan's ex-husband Mashood Khan that Defendalit Khan and her counsel made false certifications. (ECF No. 50.) This Motion is presently beforel the Court. LEGAL STANDARD I ! Rule 60(b) enables a party to seek relief from a final judgment based on six limited bases. I In re Bressman, 874 F .3d 142, 148 (3d Cir. 2017); see also Gonzalez v. Crosby, + 5 U.S. 524, 528 (2005). All motions made under Rule 60(b) must be made within a reasonable time of the entry of the order, judgment, or respective proceeding that the motion challenges.[ . ' Civ. · P. 60(c)(l). Motions under Rule 60(b)(l}-(3) are subject to an additional requirement that the motion must be made no more than one year after the judgment or order at issue entered or following the respective proceeding. Id.; see In re Bressman, 874 F.3d at 149; H1tbert v. Bellmawr ParkMut. Hous. Corp., 2016 WL 3900764, at *3 (D.N.J. July 18, 2016:). Rule 60(b) motions are "extraordinary relief which should be granted only where extraordinJrr justifying 11 circumstances are present." Gochin v. Thomas Jefferson Univ., 667 F. App'x 366 (3d Cir. i 2016) (per curiam) (quoting Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991)). ]tis within the trial court's sound discretion to grant or deny a motion to vacate judgment. See review the denial of a Rule 60(b) motion for abuse of discretion."). 3 J at 367 ("We I DISCUSSION Defendant Khan asks the Court to vacate three specific orders pursuant to Rule 60(b): (1) the order granting substituted service (ECF No. 22), (2) the Clerk's entry of against 1/ Defendant Khan (ECF No. 29), and (3) the Court's award of default judgment Khan (ECF No. 46). (Def. Khan's Mem. at 1, ECF No. 47-1.) She asserts that Rule is satisfied , 1/ by excusable neglect on her own part, misconduct and lack of diligence by Plaintiffs, and the interests of justice. (Id.) Defendant Khan also argues that, in the alternative, she !as a meritorious defense to overcome default judgment. (Id. at 9.) Plaintiffs respond that Defendant Khan improperly seeks appeal or reconsideration of default judgment. (See generally ii Pis.' Opp'n, ECF No. 48.) The Court will analyze each of the orders Defendant i;tian seeks to vacate and her arguments pursuant to Rule 60(b). I. Order Granting Substituted Service (ECF No. 22) Defendant Khan claims that Judge Arpert's order should be vacated Plaintiffs did I I not exercise diligent inquiry and good faith in effectuating service of process to ,arrant substituted service. (Def. Khan's Mem. at 5--6.) In response, Plaintiffs argue that a Rule 60 I motion is the improper vehicle to address a non-final order permitting substituted service! reconsideration would have been the more appropriate method of challenge. (Plst' Opp'n at Ia- 11.) And in the alternative, the Court already concluded that the substituted servibe was valid. !/ (Id. at 12.) I I ,1 Rule 60 applies to a ''final judgment, order, or proceeding." Fed. R. Civ. :p. 60(b) ! (emphasis added). The concept of finality on a motion to vacate is governed by tr same standard applicable to finality on appeal. See Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118, 125 11 (3d Cir. 2004). A final decision is "one which disposes of the whole subject, givts all the relief 4 1 : • 1 I that was contemplated, provides with reasonable completeness for giving effect tj the judgment 1 and leaves nothing to be done in the cause save to superintend, ministerially, the tecution of the decree." Id (quoting Isidor Paiewonsky Assocs., Inc. v. Sharp Propos., Inc., 998 F .2d 145, 150 (3d Cir. 1993)) (interpreting Caitlin v. United States, 324 U.S. 229, 233 (1945)). Leering none of these criteria, nor ''purport[ing] to resolve[] any of the claims that [Plaintift] prtented to the I District Court," this order permitting substituted service does not qualify as a final order. Id. Accordingly, the Court cannot review Judge Arpert's order on this Motion to vJte, and the I Motion must be denied with respect to ECF No. 22. II. I Entry of Default (ECF No. 29) and Default Judgment (ECF No. 46) I Defendant Khan next argues that default and default judgment should be because ,I Plaintiff failed to fully or properly comply with the order for substituted service, default and default judgment void (Def. Khan's Mem. at 2, 5--6), and because she lnever received the complaint, establishing excusable neglect (id. at 4). Defendant Khan also claims that an :I analysis of the default judgment factors marshals in favor of vacating default and default judgment, arguing she has a meritorious defense, Plaintiff will not be prejudiced, she is not culpable in her delay. (Id. at 8-10.) A. Are Default and Default Judgment Void? i A motion to vacate may be granted where the judgment is void. Fed. R. C;iv. P. 60(b)(4). A default judgment, and the precursor entry of default, is void where predicated improper I service. See Wahab v. N.J. Dep 't ofEnv. Protection, 2017 WL 4790387, at *3 (0 .N.J. Oct. 24, 1 I 2017); Marks & Sokolov, LLC v. Mireskandari, 2015 WL 1133788, at *3 (E.D. 2015), ajf'd Marks Law Offices v. Mireskandari, 704 F. App'x 171 (3d Cir. Mar. 11, The ultimate goal of service is to provide "'notice reasonably calculated ... to apprise interest,d parties of the 5 .' pendency of the action,' and thus satisf[y] the requirements of the Due Process CJause." Marks Law Offices, 74 F. App'x at 177 (quoting Mullane v. Cent. Hanover Bank & Tr. qo., 339 U.S. :1 306, 314 (1950)) (omission in original); James v. City ofJersey City, 187 F.R.D. 516 (D.N.J. 1999) ("The service rules were fashioned to provide defendants with noti1e and an opportunity to defend themselves[.]"). · Defendant Khan asserts that the orders for default and default judgment are void because 11 "Plaintiffs[] failed to demonstrate diligent effort and inquiry'' in their service attetjipts to justify granting substituted service (Def. Khan's Mem. at 5-7), and that Plaintiffs failed Jp comply with I Judge Arpert's order which required she also be served by certified and ordinary mail pursuant to 11 New Jersey Court Rule 4:4-4(b)(I)(C) (id. at 2, 7). Plaintiffs construe this argumrt to be an allegation of their own fraud, misrepresentation, or misconduct under Rule 60(b)(p). (Pls.' Opp'n at 14-15.) I Upon granting substituted service, "the Court ... found that the Plaintiffs ha[ d] taken I diligent steps to locate and serve these defendants." (ECF No. 22.) Therefore, the Court will not I . consider the first argument with respect to Plaintiffs' diligence or lack thereof, ash improperly 11 seeks to disturb Judge Arpert' s order. See supra section I. Moreover, upon reviei\7 of the I documents submitted in support of Plaintiffs' motion for substituted service, the lourt agrees with Judge Arpert's conclusion. (See Pls.' Br. at 6, ECF No. 19-1 ("[M]ultiple attempts have been made to personally serve Zuberi and Khan at their domiciles through a prols server. In addition, secondary steps were taken to assure that the addresses obtained were and to locate alternate locations of service including completing exhaustive online publif record searches through paid and free databases."). On this basis, default and default judgment should not be vacated for improper service or lack of notice. 6 11 ' . As to the second argument, the Court has already concluded that certifications" that he did not receive the complaint, "service on Defendant Khan - Mr. Cohen's in fact ! valid." (Op. at 7, ECF No. 45.) 1 The certificate of service Plaintiffs docketed deifonstrates "that I the complaint was left with an individual named Fran [Connelly], a person authorized to accept II I I service" at the law offices of Kamensky, Cohen & Riechelson. (Id. (citing Affida'fit of Service for Philip J. Cohen, Esq., ECF No. 24-1).) Here, like in Marks & Sokolov, attempted to 1 1,1 effectuate service at addresses found in both public and private people searches (ij.ang Deel. 11 ifif 6-7, ECF No. 19-1; Lexis Public Record Search, Ex. B., ECF No. 19-2), as wen as upon 11 counsel that had represented Defendant Khan just a few months before substitut4 service was effectuated (Kang 8, ECF No. 19-1); this conduct was reasonably calculated to apprise 11 I Defendant Khan of the litigation such that it did not offend due process. See WL 1133788, at *6. Per Defendant Khan's supplemental submission to the Court by letter, Deftndant Khan was aware of this lawsuit as early as February 14, 2017 when GSMI was served at her place of I employment. (Ex. A, ECF No. 50-2; Khan Suppl. 2, ECF No. 50-3.) Deftndant Khan contends that substituted service was also improper because Plaintiffs did not fullr comply with Judge Arpert's order to serve by mails. While this failure may constitute a violatifn of a court order, this violation does not offend due process because Judge Arpert's order didl not in any way I 11 find that constitutionally-adequate service was contingent on service by both On 11 l 1 In her present Motion, Defendant Khan argues that her conduct is not culpable, relief for excusable neglect, because she had no actual notice of the claims against her. l/(Def. Khan's Mem. at 10.) Defendant Khan also notes that "this Court incorrectly read Khan'sjcross-motion to set aside default as contesting service of process." (Id.) The Court, respectfully, disagrees. The cross-motion specifically claimed that default must be set aside because she riever received the complaint. (Def. Khan's Br. at 4, ECF No. 41-3.) Actual receipt is not the st*dard for service-as discussed above, service is designed to achieve notice that comports With the Due Process Clause and must be reasonably calculated to apprise one of a pending la\\fsuit. See Marks Law Offices, 704 F. App'x at 177. 7 ' . balance, the Court is satisfied that the prior service attempts coupled with service to Mr. Cohen's office were adequate to meet the constitutional notice standard. Accordingly, the for default and default judgment are not void. B. Has Defendant Khan Established Excusable Neglect? For a motion to vacate predicated on excusable neglect, see Fed. R. Civ. Pl 60(b)(I), courts must consider the four factors set forth by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 501 U.S. 380, 395 (1993):1''the danger of prejudice to the [non-movant], the length of delay and its potential impact onjuditial proceedings, the reason for the delay, and whether the movant acted in good faith]" In re Cendant Corp. PRIDES Litig., 235 F.3d 176, 182 (3d Cir. 2000) (quoting Chemeton Corp. v. Jones, 72 F.3d 341, 350 (3d Cir. 1995)). "This is an equitable test, which requires a court to take into account the totality of the circumstances." Ethan Michael Inc. v. Union Twp.I. 392 F. App'x ii II 906, 909-lO (3d Cir. 2010); see also N.J. Bldg. Const. Laborers Dist. Council v. iobert DeForest Demolition Co., Inc., 2012 WL 5304700, at *2 (D.N.J. Oct. 25, 2012) excusable neglect where respondent's sole shareholder was deceased at the time r no filing because there was a representative for the estate). The Court is mindful that "[e]xcusable leglect is the I fankr· Feb. 22, I exception, not the rule." Lubetkin v. DWK, Inc., 2007 WL 610408, at *2 (D.N.J. 2007). Defendant Khan argues that her failure to appear or respond is a result of 1xcusable neglect because her attorney did not provide her with the summons and The length of delay factor counsels in Defendant Khan's favor: some time has passed since the of this suit (ECF No. 1, 1/31117), but very little time has elapsed since the Court awarded default judgment (ECF No. 46, 3/9/18). The Court agrees with Defendant Khan that the itipulated I 8 11 extension of motions between November and December of2017 should have no bearing on this analysis. (See Def. Khan's Reply at 11, ECF No. 79.) As discussed in the Court'sJast Opinion, I however, Plaintiffs will suffer prejudice if default judgment is vacated for excusable neglect: this case has been open since February 2017, but there has been no development in pre+trial discussions or discovery. Cf Lee11Stra v. Then, 2013 WL 246876, at *2 (D.N.J. JJ. 22, 2013) (finding no prejudice where parties already "completed fact discovery, exchanged lxpert reports, and prepared for summary judgment" with "thorough briefs"). Plaintiffs I assert that they would suffer prejudice were the judgment vacated. (Pls.' Opp 'n at 8 n.5 (emghasizing that Khan has presented no meritorious defense that would allow Plaintiffs to their claims); id. at 20 n.9 (detailing how loss of evidence, faded memories, and additional ftaudll is likely given Defendant "Khan's shifting contentions as to the nature and extent of her ownershfp of GSMI").) 11 I Next, Defendant Khan asserts that the reason for the delay is the "lack of nrtice and clear dereliction of a duty owed by Khan's former attorney to her." (Def. Khan's Mern at4; Def. 1 Khan's Reply at 2.) In her recent response letter and certification to the Court, it ,eerns as though Defendant Khan also attempts to shift culpability to a different attorney she consulted after GSMI was served and she was effectively on notice of the action. (Khan sull. Cert. ml 4I 7 (explaining that Edward Hunter, Esq., advised she take no action on lawsuit personally served).) Attorney misconduct or inaction may be grounds for excusable neglect, !depending on t' 117 (3d Cir. I the weight of the other Pioneer factors. See In re Subramanian, 245 F. App'x 11 2007); In re Interstate Grocery Distr. Sys., Inc., 267 B.R. 907, 912 (D.N.J. Bankrj 2001). While 11 ;1 Defendant Khan's admission that she "had notice of the Complaint as a result ofilaintiffs' service upon Garden State Magnetic Imaging, LLC" (Def. Khan's Letter at 2, ECF No. 50) does I I 9 11 not bear on the adequacy of service explored above, it demonstrates that Defendant Khan's failure to respond is possibly attributable to her own conduct, not simply neglect f her attorney. Finally, Defendant Khan asserts that she has acted in good faith, seeking tq actively defend herself in this action. (Def. Khan's Reply at 2.) This factor is in While it is true that Defendant Khan has now appeared and involved herself in motion practit, the substance of her defenses, see supra section 11.C, do not necessarily display good faith efforts to defend. These factors appear in balance, and accordingly, the Court cannot find vr'cature warranted, particularly without consideration of the default judgment factors. , C. Should Default Judgment be Vacated under the Default Judgment Factprs? A court must consider four factors when deciding whether to vacate a judgment order: "(l) whether lifting the default judgment would prejudice the plaintiff; (2) thether the defendant has a prima facie meritorious defense; (3) whether the defaulting defendant's conduct 11 is excusable or culpable; and (4) the effectiveness of alternative sanctions." Mrs. Ressler 's Food Prods. v. KZY Logistics LLC, 675 F. ApP'x 136, 139-40 (3d Cir. 2017) (internal Jtations Whether or not the defendant has a meritorious defense is a threshold See In re Subraman.ian, 245 F. App'x at 115. "A defendant has the burden of showing witti some specificity the basis for his defense." Lubetldn, 2007 WL 610408, at *2. Allegatibns of a II 11 defense must be grounded in specific facts, not "simple denials or conclusory statements," United States v. $55,518.05 in. U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1983), nor "a verbatim excerption of the statutory language[]" on which a plaintiff's claim relies, v. Pryce, 259 F.R.D. 101, 106 (D.N.J. 2009). In support of this Motion, Defendant Khan submitted a certification facts which she posit support her meritorious defense. Defendant Khan asserts she had no direct ownership II 10 ,> interest in GSMI at its inception (Khan operations of GSMI (id. 8, ECF No. 47-2), she oversaw the ,(lay-to-day 30), she has no knowledge of any possible kickbacks ( J ml 31-32), j and she has reviewed GSMI bank records which gave her no reason to believe kic:Jcbacks 11 occurred (id. ,, 28, 33). Defendant Khan also asserts that her GSMI office is not finked to the Operation RayScam investigation, nor was there a warrant issued for her locatioTnly an Elizabeth office with which she has no association. (Id.,, 37, 41-45.) Finally, sne repeatedly . I distances herself and GSMI from Rehan Zuberi. (Id. mf 19-20, 36, 40.) 11 It is true that if Defendant Khan had no knowledge of the alleged fraud or involvement therein, she likely could not be liable for the Counts of common law fraud and vidlations of the '[ New Jersey Insurance Fraud Protection Act, for which a required element is by the defendant. (Op. at 8, 9). See Alliots v. Meat House Franchising, LLC, 2014WLf517777, at *2-3 (D.N.J. July 14, 2014) ("All the counts of the Complaint rely upon alleged i I, misrepresentations about the financial condition of MHF. Brown has submitted aldeclaration which, if true, demonstrates that Brown personally made no misrepresentations alfout the financial status of MHF or any of its franchises. If it is true that Brown made no I misrepresentations about the financial condition of MHF, then he could not be liable under any of the counts of the Complaint for his own actions."). While Defendant contends that Plaintiffs cannot dispute her "clear and substantiated denial of any knowledge of or participation · !I in a fraudulent scheme" (Def. Khan's Reply at 3), the Court does not believe that her declaration adequately supports that determination. She provides conclusory, generalized dJals of her involvement and knowledge, rather than facts or documents to support those Defendant Khan did attach a business license and print-outs from the NJ AG's intestigation of i Rehan Zuberi's fraud scheme, Operation RayScam. (Exs. B-D, ECF Nos. 47-3, 17-4, 47-5, 47- 11 . . •> II I I. . . . 1catJ.on, however, th at the m1onnatJ.on provi ed 1s a compreh ,1ve picture of . .c. • .d . 6.) There 1s no ind. . the entities tied to Rehan Zuberi's fraud, and therefore, this submission alone cannot negate her liability. Cf. Howard Johnson Int'/, Inc. v. /MH, LLC, 2017 WL 555988, at *3 J.N.J. Feb. 10, 2017) (finding meritorious defense where defendant provided affidavit that signaJre was not his, • as well as copy of reports of signature experts regarding the validity of signatures lat issue in the action). I Plaintiffs extract key denials set forth in Defendant Khan's declaration an1 describe why "even if accepted as true-[they] would not constitute a complete defense to the aption." (Pis.' ! Opp'n at 25.) As Plaintiffs also note, Defendant Khan supervises day-to-day and when GSMI merged with another entity, she held a 50% ownership. (Pis.' Opp'n!at 26; Verified Compl. mf 12-13, Ex. B, ECF No. 48-5 (complaint filed by Defendant Khan in Sjperior Court, Chancery Division, Mercer County, attesting to her ownership interest as of July Ji, 2016).) These facts cast doubt on some of Defendant Khan's current representations. It is also noteworthy that the facts in this certification were not presented tf the Court on ,[ I Defendant Khan's original cross-motion to vacate default as support for her alleg1d meritorious defense. On that motion she raised irrelevant RICO defenses, claimed that Plaintrs improperly group-pled fraud, and argued that the allegations of fraud did not meet Rule 9(b). :(See Op. at 13-15.) The certification she provided in support of the motion only addressed the issue of service (see generally Khan Cert., ECF No. 41-4); there was nothing related to hJ ownership of GSMI, her involvement in the company, her knowledge of kickbacks, or the of others that she now alleges. ]I Likewise, Defendant Khan ''failed to submit a proposed answer with [her motion to vacate default, as required by Local Rule 7 .1 (f)"-with her original cross-motion lin January and . 12 ·I: . .. I with her initial moving papers for this Motion to Vacate. Borges v. Santos, 2011r3515996, at *1 (D.N.J. Aug. 11, 2011); Marks & Sokolov, 2015 WL 1133788, at *7 ("Defen.dants have not ! even attached a proposed Answer to their motion to set aside the default judgmenf').2 Defendant Khan has now submitted a proposed answer with her reply to Plaintiffs' opposition, II but this document hardly meets the standard for a meritorious defense. (Def. Nazish Kahn's Answer to Pis.' Comp!., Ex. A, ECF No. 49-2.) Defendant Khan repeats the saml denials"[t]he allegations contained within Paragraph [x] of the Complaint are denied," "[t]he allegations contained within Paragraph [x] of the Complaint are denied as this cotjnt is not directed to this Defendant"-for all 508 paragraphs of the Complaint. (See generhlly id. )3 !I The Court has already addressed culpability and prejudice in the analysis of the Pioneer 'I factors, but because Defendant Khan fails to advance a meritorious defense, there is no basis on 1 which to vacate default or default judgment. Both analyses, on balance, disfavor default and default judgment. i I D. Does Justice Warrant Granting Defendant Khan's Motion to Vacate? Rule 60(b) also includes a catch-all provision, permitting courts to vacate for "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). To do so, "a col must find there are 'extraordinary circumstances.'" Ethan Michael Inc., 392 F. App'x at 2 (quoting According to the Local Rules, Upon filing of a motion for leave to file an amended complaint or answer,/ a complaint in intervention, or other pleading requiring leave of Court, the tpoving party shall attach to the motion a copy of the proposed pleading or amendµients and retain the original until the Court has ruled. If leave to file is granted, the moving party shall file the original forthwith. · L. Civ. R. 7.l(f). , 3 Defendant Khan also includes ten general affirmative defenses: failure to state a/ claim; unclean hands; estoppel; !aches, and waiver; no duty violated, damages not a result actions, etc. (Id. at 28.) ', 13 I I Budget Blinds Inc. v. White, 536 F.3d 244, 251, 254 (3d Cir. 2008)). "While Rule 60(b)(6) 'is a grand reservoir of equitable power to do justice in a particular case,' the Rule doef 'not confer upon the district courts a "standardless residual discretionary power to set aside I I Dunkin' Donuts, Inc. v. Arkay Donuts, 2006 WL 2417241, at *6 (D.N.J. Aug. 21, :12006) (quoting I Martinez-McBean v. Gov't ofV.1, 562 F.2d 908, 911 (3d Cir. 1977) (internal and quotations omitted))). Defendant Khan argues that justice requires vacating default judgment because she will face "not only compensatory, but statutory damages for a claim that she can defetjd completely." (Def. Khan's Mem. at 8; Def. Khan's Reply at 1 (describing a "massive defaultjUfgment" and "draconian award of statutorily trebled damages").) The Court has already concl,ded that Defendant Khan does not present a meritorious defense such that she can survive pefault I judgment. Without any other justification provided by Defendant Khan the Courti cannot find I that extraordinary circumstances and the interests of justice warrant relief. CONCLUSION I For the foregoing reasons, Defendant Khan's Motion to Vacate is denied. corresponding order will follow. 14 ::A
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