                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3042-15T2

LINDEN MEDICAL ASSOCIATES, P.C.,

        Plaintiff-Respondent,

v.

EBELE NNEKA ILOGU,

     Defendant-Appellant.
_______________________________

              Submitted March 30, 2017 - Decided May 8, 2017

              Before Judges Lihotz and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              4775-15.

              John C. Uyamadu, attorney for appellant.

              Rajan & Rajan, LLP, attorneys for respondent
              (Jordan B. Dascal and Oscar A. Escobar, Jr.,
              of counsel and on the brief).

PER CURIAM

        Defendant Ebele Nneka Ilogu appeals from three Law Division

orders: a November 24, 2015 order entering default judgment when

she failed to respond to plaintiff's complaint alleging breach of

contract; a February 5, 2016 order denying her motion to vacate
the default judgment; and a March 18, 2016 order denying her motion

for reconsideration.       On appeal, defendant maintains the Law

Division judge erroneously refused to vacate the default judgment

despite her challenges, plaintiff failed to abide the arbitration

clause in the agreement, and the consequential damages clause is

unconscionable.    Following our review of the arguments presented,

in light of the record and applicable law, we conclude defendant

failed to satisfy the requirements of Rule 4:50-1.         Accordingly,

we deny her request to vacate default judgment.

     Defendant, a nurse practitioner, began working for plaintiff,

Linden Medical Associates, M.D., P.C., on a per diem basis.

Shortly thereafter, the parties executed a two-year employment

contract "commencing on July 15, 2014."1         Defendant employed an

attorney to review the employment contract prior to her execution.

Under the terms of the contract, defendant was paid a salary,

provided   two   weeks   paid   vacation,   permitted   satisfaction    of

professional fees, given up to $5000 in reimbursement for personal

health insurance, and was included on plaintiff's malpractice



1    The record contains a per diem contract and an employment
contract, both of which contain a date adjacent to defendant's
signatures of June 24, 2014.   However, the parties suggest the
two-year employment contract under review actually was signed on
July 16, 2014, and backdated to the date defendant started
employment.


                                    2                            A-3042-15T2
insurance.   The contract stated either party may terminate the

agreement with ninety days written notice, upon a material breach

of its terms.       Additionally, in the event of a dispute, the

contract contained an arbitration clause.2         Finally, the agreement

contained two liquidated damages provisions:           first, if defendant

resigned before the end of the contract term, plaintiff was

entitled to $20,000 as liquidated damages; and second, if defendant

resigned upon less than ninety days' notice, plaintiff was entitled

to an additional $20,000.

     Giving approximately one month's notice, defendant submitted

her resignation, effective March 31, 2015.3             Plaintiff filed a

four-count   complaint     on   August   12,   2015,   alleging   breach    of

contract, breach of the covenant of good faith and fair dealing,

misrepresentation    and    fraud,   and   tortious     interference     with




2    Many of defendant's arguments are premised on plaintiff's
failure to comply with the agreement's arbitration clause. We do
note the clause as drafted contains misstatements, such as invoking
the New Jersey State Arbitration Code and providing venue for "any
litigation will be the Circuit Court of Elizabeth in Union County."
Nevertheless, for the reasons stated in our opinion, we affirm the
orders and judgment making it unnecessary to consider the
arbitration clause.

3    Plaintiff references defendant filed a claim with the
Department of Labor (DOL), seeking alleged vacation pay, which
plaintiff states was dismissed at a December 21, 2015 hearing "for
lack of merit."

                                     3                               A-3042-15T2
contractual relations.           Plaintiff demanded $40,000 as liquidated

damages.

      Plaintiff        proved    the     complaint      was     personally      served.

Defendant did not respond and ignored plaintiff's follow-up call

and correspondence.

      Plaintiff moved for entry of default and submitted proofs

supporting its damage request.                     Judge Arthur Bergman entered

default judgment on November 24, 2015, which required defendant

to pay plaintiff $44,255.90, consisting of liquidated damages,

prejudgment interest, attorney's fees and costs of suit.

      On December 31, 2015, defendant moved to vacate the default

judgment.       Defendant maintained plaintiff failed to serve the

request     for     default,     did     not     comply    with    the    agreement's

arbitration provision, breached the agreement by switching her

hours and not affording necessary training, and asserted the

liquidated damage clause was punitive.                    Following extensive oral

argument,      Judge      Bergman      concluded      defendant     did   not     prove

excusable neglect.          In fact, he found she offered no explanation

for her failure to answer.                  The February 5, 2016 order denied

defendant's motion to vacate the judgment.

      Defendant requested reconsideration, asserting her failure

to   respond      after    receipt     of    the    complaint     resulted   from      an

inability      to   retain      counsel.         Identifying      contradictions       in

                                             4                                  A-3042-15T2
defendant's certification filed in support of her motion, Judge

Bergman   stated   her    "certification    is    disingenuous    at     best,

untruthful at worst."      He concluded:

                 And I have no . . . basis whatsoever to
           . . . understand why she didn't file an answer,
           between the time she called the attorney for
           plaintiff to say, well, she's having trouble
           getting a lawyer and the four notices, that
           they [sic] gave her extra time, . . . told her
           they're going to default her, and they default
           her and they got a default judgment.

                The whole period of time, that's several
           months. . . . [W]henever [counsel was]
           retained, it was December, . . . she never
           responded at all. She could have just picked
           up the phone and called, could have written a
           letter. She was certainly capable of filing
           the complaint for overtime. And she's telling
           us she's not capable of filing an answer.

                I have no reason why.       I have no
           explanation why.   And that's it. You've had
           two bites at the apple. That's all the apple
           you're going to bite.     So, the motion is
           denied.

      Defendant moved to stay the judgment and filed a timely notice

of   appeal.   Judge     Bergman   denied   the   request   for   stay,     and

defendant's emergent application to this court seeking a stay

pending appeal was also denied.

      The standards guiding a trial judge's consideration of a

request to vacate a default judgment, as well as the standards

guiding our review of the resultant order, are well-defined.                   A

party must present evidence showing the failure to file timely

                                     5                                 A-3042-15T2
responsive pleadings was the result of excusable neglect, and must

also assert the existence of a "meritorious defense."      US Bank

Nat'l Ass'n v. Guillaume, 209 N.J. 449, 469 (2012); see also,

Morales v. Santiago, 217 N.J. Super. 496, 501 (App. Div. 1987)

("[A] defendant seeking to reopen a default judgment must show

that the neglect to answer was excusable under the circumstances

and that he [or she] has a meritorious defense.") (quoting Marder

v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff’d,

43 N.J. 508 (1964)).

          When the matter has proceeded to the second
          stage and the court has entered a default
          judgment pursuant to Rule 4:43-2, the party
          seeking to vacate the judgment must meet the
          standard of Rule 4:50-1 . . . .

          The rule is "designed to reconcile the strong
          interests in finality of judgments and
          judicial efficiency with the equitable notion
          that courts should have authority to avoid an
          unjust result in any given case." Mancini v.
          EDS, 132 N.J. 330, 334 (1993) (quoting Baumann
          v. Marinaro, 95 N.J. 380, 392 (1984)).

          The trial court's determination under the rule
          warrants substantial deference, and should not
          be reversed unless it results in a clear abuse
          of discretion.     See DEG, LLC v. Twp. of
          Fairfield, 198 N.J. 242, 261 (2009); Hous.
          Auth. of Morristown v. Little, 135 N.J. 274,
          283 (1994).    The Court finds an abuse of
          discretion when a decision is "made without a
          rational explanation, inexplicably departed
          from established policies, or rested on an
          impermissible basis."    Iliadis v. Wal-Mart
          Stores, Inc., 191 N.J. 88, 123 (2007) (quoting


                                6                          A-3042-15T2
            Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561,
            571 (2002)).

            [Guillaume, supra, 209 N.J. at 467-68.]

      Defendant urges we vacate the default judgment, along with

the   subsequent    orders,    by   suggesting       the   arbitration    clause

precludes adjudication of plaintiff's complaint in the Superior

Court.    Alternatively, defendant contends the "Circuit Court of

Elizabeth" refers to the Superior Court, Union County.                Defendant

maintains the liquidated damage provisions were unconscionable,

making them void ab initio and unenforceable.                      Finally, she

challenges the substance of plaintiff's proofs as insufficient to

support the judgment.

      What remains absent from defendant's presentation is the

basis    underlying    her    failure   to    answer.        Defendant's     bald

invocation, suggesting justice requires the default judgment be

vacated, ignores the very clear procedural requirements of Rule

4:50-1.

      "'Excusable     neglect'   may    be   found    when   the   default    was

'attributable to an honest mistake that is compatible with due

diligence or reasonable prudence.'"            Guillaume, supra, 209 N.J.

at 468 (quoting Mancini, supra, 132 N.J. at 335).               Our precedents

make clear, "mere carelessness" is insufficient.               Ibid. (quoting

Baumann, supra, 95 N.J. at 394).             Absent demonstrable excusable


                                        7                                A-3042-15T2
neglect, we need not examine the matter further.                     Rather, this

court must affirm the denial of the motion to vacate.                     Id. at 469.

     Here,    defendant       was   properly     served    with   the     complaint,

accompanied by a summons instructing the time to answer.                            She

called plaintiff's counsel and was granted additional time to

search for a legal representative and to answer.                           Defendant

disregarded plaintiff's follow-up letters, dated October 7, 2015

(advising default would be requested if she did not respond by

October   16),      October    22,    2015     (informing     her    default        was

requested),    and    November      11,   2015   (seeking    entry        of   default

judgment).    Pursuant to the requirements of Rule 4:43-1 and Rule

4:43-2, plaintiff mailed defendant its submissions for entry of

default and default judgment by first class and certified mail.

No additional notice is required.                See Dynasty Bldg. Corp. v.

Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005) (declining to

set aside default despite flawed notice, absent prejudice to the

defendant).      Further,       defendant      initiated    DOL     administrative

proceedings    to    seek     vacation    pay,     reflecting       her    level      of

sophistication in pursuit of redress.               She offers no reason for

not contacting plaintiff or the court seeking additional time to

respond to plaintiff's complaint.

     Arguments challenging venue cannot suffice as                        supporting

excusable neglect, nor can defendant's allegations the liquidated

                                          8                                    A-3042-15T2
damages     were   unconscionable.          Defendant's   failure      to   show

excusable    neglect    defeats   her   request    to   vacate   the    default

judgment.

    We also reject as lacking merit, R. 2:11-2(e)(1)(E), the

claim awarded damages were not sufficiently proven by plaintiff

because the judge did not conduct a proof hearing.               See Morales,

supra, 217 N.J. Super. at 505 (stating the necessity of a proof

hearing rests with the discretion of the trial judge).

    We      conclude     Judge    Bergman      afforded    defendant        many

opportunities      to   support   her   request   to    vacate   the    default

judgment.     However, she could not demonstrate excusable neglect;

rather, the record shows she ignored plaintiff's complaint.

    Affirmed.




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