The opinion of the court was delivered by: Siragusa, J.
This prisoner civil rights case is before the Court on Plaintiff's motion (Docket No. 6) for entry of a default judgment and Defendants' motion (Docket No. 8) to set aside the Clerk's Default entered against them. Plaintiff claims that he properly served Defendants and they willfully ignored the lawsuit. Defendants counter they were never served, and, in any event, have a meritorious defense. For the reasons stated below, Plaintiff's application is denied, Defendants' application is granted, and the Clerk is directed to set aside the default.
Plaintiff commenced this lawsuit by the filing of a complaint with the Court on June 1, 2009. In his complaint, Plaintiff alleges that, beginning in or around June of 2008 defendants Craig L. Skelly, Randy Banks, Shawn D. Pierson, Timothy J. Hable, Joel R. Ayers, and Sean F. Davis, corrections officers at Southport, engaged in a pattern of conduct involving the use of excessive force against, harassment of, and retaliation against plaintiff in violation of plaintiff's rights under the First, Eighth, and Fourteenth Amendments to the US Constitution. Plaintiff also alleges that defendant David Napoli, the superintendent of Southport, knew of his co-defendants' conduct, knew that his co-defendants had a history of using excessive force against inmates at Southport, and failed and refused to intervene on plaintiff's behalf. (Pl.'s Mem. of Law 2.)
On two dates, Plaintiff's counsel corresponded with one of the defendants, David Napoli ("Napoli"), first on April 20, 2009, and again on July 16, 2009. In his first letter to Napoli, Plaintiff's counsel states that he advised Napoli "that a lawsuit was being prepared in connection with the allegations of abuse against plaintiff by various Southport corrections officers." (Siven Decl. Ex. 1.) Then, in his second letter to Napoli, Plaintiff's counsel "referenced the lawsuit that had already been commenced by plaintiff against Napoli and other corrections officers." (Sivin Decl. Ex. 2.) Finally, on July 20, 2009, Plaintiff further claims that Napoli wrote to Plaintiff's counsel and acknowledged having received the July 16, 2009 letter. (Siven Decl. Ex. 3.)
Initially, each defendant submitted what the Court, at oral argument, characterized as a form affidavit, merely reciting in conclulsory terms that he had not been served and denying he had done anything to violate Plaintiff's constitutional rights. (See Declarations by Banks, Davis, Hable, Napoli and Pierson, Docket Nos. 9--13, filed Sept. 11, 2009, and Declarations by Ayers and Skelly, Docket Nos. 18 & 19, filed Sept. 18, 2009.) The Court heard oral argument on January 14, 2010, at which time the Court reserved decision, directed Plaintiff's counsel to send a letter to Court advising whether Plaintiff would conduct limited discovery on the issue of whether Defendants have raised a meritorious defense, and gave the defendants until January 28, 2010, to make further submissions in support of their application.
On January 27, 2010, Banks, Ayers, Napoli, Davis, Pierson, Hable and Skelly each submitted a declaration in further support of their motion to set aside the Clerk's entry of default. The new declarations contain additional details. Skelly's declaration includes the following:
3. I have not been served with a summons and/or complaint in this action. This means that I have never been provided with a copy of the summons and/or complaint except by my attorney as part of the default application.
4. I respectfully submit that any default was not willful. If I had received a copy of the summons and/or complaint, I would have followed the procedure and contacted the facility Inmate Records Coordinator and requested representation by the Attorney General's Office.
5. Plaintiff contends that I assaulted, retaliated and otherwise violated his constitutional rights. I deny any such conduct.
6. Plaintiff claims that on June 17, 2008 I struck plaintiff on the chest. I did not strike plaintiff. (Skelly Decl. ¶¶3--6, Docket No. 29.) Hable's declaration contains, in addition, the following:
6. Although on July 2, 2008 there was a use of force, neither I nor anyone in my presence, attacked, punched, choked, kicked or stomped on plaintiff. I deny the actions alleged and further deny that anything that happened, including the writing of the misbehavior report, was not in retaliation for plaintiff's grievances and complaints.
7. I did not threaten nor harass nor otherwise retaliate against plaintiff. (Hable Decl. ¶¶6--7, Docket No. 28; see also Davis Decl. ¶6, Docket No. 26.) Pierson's includes additional detail pertinent to him: "The only place in the complaint I am accused of specific conduct is in paragraph 21. Plaintiff specifically alleged that on unstated dates I deprived plaintiff of food, water, electricity, toilet facilities and falsely accused plaintiff of misconduct. I deny these allegations." ...