CABRERA v. EHA OF BUFFALO, INC. et al, No. 2:2018cv08767 - Document 25 (D.N.J. 2018)
Court Description: OPINION & ORDER, adopting 19 Report and Recommendation filed on November 16, 2018 and made part of this Order; Individual Defendants' 13 MOTION to Dismiss for insufficient serve of process pursuant to Federal Rule of Civil Procedure Rul e 12(b)(5) is DENIED; the initial service as to the Individual Defendants is quashed and Plaintiff is granted a thirty (30) day extension from the date of this Order to effectuate proper service; and the Clerk is directed to reissue the summons as to the Individual Defendants; etc. Signed by Judge John Michael Vazquez on 12/11/2018. (sms)
Download PDF
<![CDATA[
Not for Publication UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Plain tiff Civil Action No. 18-8767 v. OPINION AND ORDER ERA OF BUFFALO, INC., d/b/a EASTERN HOSPITALITY ADVISORS, LLC, DOUGLAS VANSTROM and SAM LAGAMB NA, Defendants. John Michael Vazciuez. U.S.D.J. This matter comes before the Court on the November 16, 2018 Report and Recommendation (“R&R”) of Magistrate Judge Steven Maimion. D.E. 19. The R&R addresses the motion to dismiss the Amended Complaint for insufficient service of process, D.E. 13, filed by Defendants Douglas Vanstrom and Sam LaGambina (“Individual Defendants”). The R&R recommends that the Defendants’ motion to dismiss be denied because Plaintiff demonstrated good cause for failing to serve the Individual Defendants within the 90-day period. D.E. 19. The parties were given notice that, pursuant to federal Rule of Civil Procedure 72(b)(2) and Local Civil Rule 71.l(c)(2), they had 14 days to file an objection to Judge Mannion’s recommendation. To date, neither party has objected. The Court has conducted a review of the record, and for the reasons stated below, the Court adopts the R&R (D.E. 19) in its entirety. The Court also orders additional time for proper service. Dockets.Justia.com ARMANDO CABRERA, Local Civil Rule 72.l(c)(2) allows a party to object to a Magistrate Judge’s R&R within 14 days of service. The district court “shall make a de novo determination of those portions to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge.” L. Civ. R. 72.1(c)(2); see Edelson V., L.P. v. Encore Networks, Inc., 2012 WL 4891695, at *2 (D.N.J. Oct. 12, 2012). The district court “need not normally conduct a new hearing and may consider the record developed before the Magistrate Judge, making his or her own determination on the basis of that record.” L. Civ. R. 72.1 (c)(2); see Edelson, 2012 WL 4891695, at *2. “As to uncontested portions of the report, the district court has discretion to choose an appropriate standard of review. At a minimum, what is not objected to, the district court reviews under the plain error or manifest injustice standard.” Edelson, 2012 WL 4891695, at *3 (internal quotations, citations, and brackets omitted). “[W]here no objections are made in regard to a report or parts thereof, the district court will adopt the report and accept the recommendation if it is ‘satisf[ied] . . . that there is no clear error on the face of the record.” Sportscare ofAm., P.C. v. Multiplan, Inc., 2011 WL 500195, at *1 (D.N.J. Feb. 10, 2011) (quoting Fed. R. Civ. P. 72 Advisory Committee’s Notes). In the R&R, Judge Mannion explained that while a plaintiff must serve a summons and complaint on each defendant within 90 days of filing the complaint or the matter is subject to dismissal under Federal Rule of Civil Procedure 4(m), the court is still required “to extend the time for service ‘if the plaintiff shows good cause for the failure’ to serve on time.” R&R at 2 (quoting Fed. R. Civ. P. 4(m)). Judge Maimion observed that under Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995), even if good cause does not exist, “the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service.” R&R at 3 (quoting Petrucelli, 46 F.3d at 1305) (internal quotation marks omitted). 2 Judge Mannion found that Plaintiff met the following three factors in determining the existence of good cause: (1) the reasonableness of the plaintiffs effort to serve; (2) whether the plaintiff moved for an enlargement of time to serve; and (3) whether the defendant is prejudiced by the lack of timely service. R&R at 3 (citing MCI Tetecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995)). Judge Mannion explained that the first factor was met for the following reasons: counsel for Defendant ERA of Buffalo, d/b/a Eastern Hospitality Advisors, LLC’s (“ERA”) informed Plaintiff that he would likely represent the Individual Defendants; Plaintiff reasonably expected that ERA’s counsel would execute a waiver for the Individual Defendants as ERA’s counsel had done for ERA; and five days after Plaintiff was infonried that EHA’s counsel would not be representing the Individual Defendants, Plaintiff served the Individual Defendants. R&R at 3-4. Judge Mannion indicated that the second factor was met because Plaintiffs actions constituted excusable neglect because he reasonably relied on opposing counsel’s statements. R&R at 3 (quoting MCI Telecomms. Corp., 71 f.3d at 1097). Judge Mannion determined that the third factor was met because Defendants would not be prejudiced by Plaintiffs delay in service because he served the Individual Defendants only five days past the deadline and because Defendants made no showing of prejudice. R&R at 5. Judge Mannion also noted that at the time of the R&R, the Court had not yet issued a scheduling order or discovery deadline, and that the parties had not yet engaged in any written discovery or conducted depositions. Id. Judge Mannion further explained that although he found that the good cause factors were met, even in the absence of good cause, he would nevertheless allow the case to proceed based on Fetritcelli and also because the Third Circuit has stated its preference for deciding cases on the merits and not procedural technicalities. Id. (citing Hritz 732 f.2d 1178, 1180 (3d Cir. 1984)). 3 V. Woman Corp., After reviewing the R&R, the Court finds that it is not clearly erroneous or manifestly unjust. As a result, the Court adopts Judge Mannion’s recommendation to deny the Individual Defendants’ motion to dismiss pursuant to Rule 1 2(b)(5). However, the Court will quash the initial service as to the Individual Defendants and grant Plaintiff a thirty (30) day extension upon which to properly serve Individual Defendants in accordance with the Federal Rules. F or the reasons set forth above, and for good cause shown, IT IS on this 11th day of December, 201$, ORDERED that the Report and Recommendation filed on November 16, 2018 (D.E. 19) is ADOPTED1 and made part of this Order; and it is further ORDERED that Individual Defendants’ motion to dismiss for insufficient service of process pursuant to Federal Rule of Civil Procedure Rule 12(b)(5) is DENIED; and it is further ORDERED that the initial service as to the Individual Defendants is quashed and Plaintiff is granted a thirty (30) day extension from the date of this Order to effectuate proper service; and it is further ORDERED that the Clerk of the Court is directed to reissue the summons as to the Individual Defendants. / John Michael Vazz, JS.D.J. The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 2$ U.S.C. § 636(b)(1). 4
]]>
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.
