LOVETT v. BOROUGH OF CLEMENTON et al, No. 1:2013cv04539 - Document 16 (D.N.J. 2014)
Court Description: MEMORANDUM OPINION. Signed by Judge Joseph H. Rodriguez on 11/3/2014. (TH, )
Download PDF
<![CDATA[
LOVETT v. BOROUGH OF CLEMENTON et al Doc. 16 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY BENJ AMIN LOVETT, : Hon. J oseph H. Rodriguez Plaintiff, : Civil Action No. 13-4539 : Mem orandum Opinion v. BOROUGH OF CLEMENTON, et al., Defendants. : : This m atter having com e before the Court on Defendant Borough of Clem enton’s Motion to Dism iss pursuant to Fed. R. Civ. P. 12(b) (5), Fed. R. Civ. P. 4(m ), and L. Civ. R 41.1a; and The Court having considered the subm issions of the parties as well as the argum ents advanced at the hearing on October 15, 20 14; and The Court noting that this m atter was filed on J uly 26, 20 13 by attorney William H. Buckm an, Esquire 1 and that the 120 -day service period expired on Novem ber 23, 20 13; an d The Court further noting that a Notice of Call for dism issal pursuant to L. Civ. R. 41.1(a) was published by the Clerk for failure to serve the Com plaint and that such notice caused Mr. Buckm an to respond in Certification [Dkt. No. 4] that he did not file and/ or authorize the filing of the present Com plaint; and The Court further noting that although Mr. Buckm an withdrew as counsel and new counsel, Stephen T. O’Hanlon, Esquire, entered an appearance, to date, the 1 At the tim e the Com plaint was filed, the Lovetts were represented by Patrick Geckle, Esquire, an attorney licensed in Penn sylvania. Mr. Buckm an was an attorney licensed to practice in New J ersey. According to Mr. Buckm an’s Certification and Mr. Geckle’s Affidavit, there is a significant dispute as to whether Mr. Buckm an ever agreed to file the Lovett’s Com plaint. See Buckm an Certifications, dated J anuary 17, 20 14 and February 27, 20 14 [Dkt. Nos. 4, 6]; Geckle Affidavit, Pl. Opp. Brief, Ex. A. Mr. Buckm an died on or about October 13, 20 14. Dockets.Justia.com Com plaint has yet to be served upon Defendants in violation of Fed. R. Civ. P. 4(m ) 2 ; and The Court finding that, in light of Mr. Buckm an’s assertion that he did not authorize the filing of the Com plaint under his signature, the Com plaint violates Fed. R. Civ. P. 11(a) and L. Civ. R. 11.1 in that it fails to contain the signature of “the attorney of record who is a m em ber of the bar of this Court[.]” L. Civ. R. 11.13 ; an d The Court further finding that although the record dem onstrates confusion between counsel as to the initial filing of the Com plaint, no corrective action has been taken in the year and two m onths since the Com plaint was filed, or even after Defendants filed the present m otion to dism iss on April 11, 20 14. In addition, the record 2 By way of letter dated October 16, 20 14, counsel for Plaintiff Stephen T. O’Hanlon , Esquire appends several letters to m em bers of the Clem enton Borough Adm inistration that include the in itial pleadin gs and a Waiver of Service of Sum m ons. See Dkt. No. 13. The letters are dated February 28 , 20 14 and appear to be sent following Mr. O'Hanlon's entry of appearan ce on behalf of Plaintiff. The Waivers were never executed and there is nothing in the record that dem onstrates that the Plaintiff, or Plaintiff’s counsel followed up on service or m ade any additional inquiries into the lack of service. As the record stands, Defendants were never properly served with the Com plaint. 3 In addition, the Court has also considered the “Poulis factors.” Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 198 4). Although som e do not apply, the Court finds that Plaintiff’s counsel bears the responsibility here of failing to properly prosecute this case and that the alleged confusion does not excuse Plaintiff’s counsel from ensuring that service was m ade properly within the tim e lim it. The Court notes that not all factors need be satisfied to warrant dism issal and given the extraordinary delay in service, which continues to exists, dism issal is warranted. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). is devoid of good cause 4 as to the lack of action with respect to correcting the existing deficiencies by properly filing and serving the Com plaint 5; as a result, Defendants’ Motion to Dism iss [9] is granted. DATED: Novem ber 3, 20 14 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 4 Under Fed. R. Civ. P. 4(m ), “[i]f a defendant is not served within 120 days after the com plaint is filed, the court ... m ust dism iss the action without prejudice against that defendant or order that service be m ade within a specified tim e.” Absent a showing of good cause, the Court m ay exercise its discretion either to give additional tim e or to dism iss the action . Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298 , 130 5 (3d Cir. 1995). A showing of “good cause” under Rule 4(m ) is equivalent to the “excusable neglect” standard under Fed. R. Civ. P. 6(b)(2). In this regard, Plaintiff m ust dem onstrate a good faith effort to serve Defendants within the prescribed tim e lim it. MCI Telecom m unications Corp. v. Teleconcepts, Inc., 71 F.3d 10 86, 10 97 (3d Cir. 1995) (quoting Petrucelli, 46 F.3d at 312 (Becker, J ., concurring in part and dissenting in part)). Here, Plaintiff cannot m ake such a showin g. First, even assum in g Mr. Buckm an agreed to file the Lovett’s Com plaint, the record is devoid of any follow up by Mr. Geckle. Second, Mr. O’Hanlon’s attem pt at service on February 28 , 20 14 is, at best, “half-hearted” and insufficient to dem onstrate good cause. Pezza v. Wells Fargo Bank, N.A., 0 9-CV-20 97, 20 0 9 WL 4282122, *2 (D.N.J . Nov. 30 , 20 0 9). 5 Plaintiff contends that no harm or prejudice results as to Defendants if an extension of tim e is granted; the Court disagrees. Not only did Defendants delin eate sufficient prejudice durin g the October 15, 20 14 hearing, but given that Plaintiff “filed” the Com plaint n ear the end of the lim itations period for the action, it has been over three years since the alleged violations took place. In that tim e, Defendants have not been properly served or given sufficient notice. While Plaintiff provides docum en tation that Defendants were aware of a potential action during this tim e, proper notice is lackin g. Moreover, the Court is aware that a dism issal in this action bars recovery for Plain tiff given the expiration of the statute of lim itations. The Court has considered this factor in its determ ination. See Petrucelli, 46 F.3d at 130 6.
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
