CRISDON v. NJ DEPARTMENT OF EDUCATION
Filing
25
MEMORANDUM OPINION AND ORDER denying 21 Motion for Summary Judgment. Signed by Judge Noel L. Hillman on 11/09/2011. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MYRON N. CRISDON,
Plaintiff,
v.
NJ DEPARTMENT OF EDUCATION,
Defendant.
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Civ. A. No. 10-2911 (NLH)(AMD)
MEMORANDUM OPINION
AND ORDER
APPEARANCES:
Myron N. Crisdon
531 N. 7th St.
Camden, NJ 08102
Plaintiff Pro Se
Jennifer Louise Campbell
State of New Jersey
Division of Law
R.J. Hughes Justice Complex
25 W. Market Street
P.O. Box 112
Trenton, NJ 08625
Attorneys for Defendant
HILLMAN, District Judge:
This matter having come before the Court by way of motion
[Doc. No. 21] of Plaintiff pro se, Myron N. Crisdon, for summary
judgment;1 and the Court finding as follows:
1. Subsequent to the filing of this motion, Plaintiff filed a
brief [Doc. No. 22] with a notation asking that such brief be
substituted for the brief filed with the original motion. The
Court has considered the second brief in deciding the present
motion.
1.
Plaintiff claimed in his complaint that Defendant, the New
Jersey Department of Education, failed to issue him a high
school diploma after he met the high school graduation
requirements in the spring of 2006 and, as a result,
Plaintiff was purportedly unable to pursue his dream of
becoming a professional basketball player.
2.
Prior to service of the complaint, Plaintiff filed a motion
for summary judgment and a motion to expedite ruling on the
motion for summary judgment.
Before this Court addressed
the motions, Plaintiff filed an appeal with the United
States Court of Appeals for the Third Circuit with respect
to these motions.
3.
On October 4, 2010, while the appeal was pending before the
Third Circuit, Defendant was served with process and filed a
motion to dismiss the complaint on the ground that
Plaintiff’s claims were barred by sovereign immunity under
the Eleventh Amendment to the United States Constitution.
4.
The Third Circuit issued a mandate on February 14, 2011
dismissing Plaintiff’s appeal for lack of jurisdiction.
5.
By Order dated March 2, 2011, this Court denied without
prejudice Plaintiff’s motion for summary judgment and motion
for expedited review, and provided Plaintiff thirty days to
respond to Defendant’s motion to dismiss.
Plaintiff failed
to file a response to the motion to dismiss within thirty
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days of the March 2, 2011 Order.
6.
By Memorandum Opinion and Order dated April 13, 2011, the
Court granted Defendant’s motion to dismiss, finding that
Plaintiff’s claims against Defendant are barred by the
Eleventh Amendment.
Plaintiff neither appealed nor sought
reconsideration of the April 13, 2011 Memorandum Opinion and
Order.
7.
Plaintiff has now filed a motion for summary judgment, in
which he appears to oppose the motion to dismiss that was
decided on April 13, 2011.
Plaintiff has also submitted a
letter in which he states that the Court’s Order granting
the motion to dismiss was in error because the motion was
decided while Plaintiff’s petition for a writ of certiorari
was pending before the United States Supreme Court.
8.
A petition for a writ of certiorari to the United States
Supreme Court does not divest the court of appeals or
district court of jurisdiction, and a litigant seeking
cessation of litigation pending an appeal to the United
States Supreme Court must seek and obtain a stay.
Fed. R.
App. P. 41(d)(2) (certiorari petitioner can apply for stay
of mandate but stay does not automatically issue upon filing
of petition with Supreme Court).
Plaintiff did not file a
motion to stay the mandate of the Third Circuit pending
review by the Supreme Court, and Plaintiff’s filing of a
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petition for a writ of certiorari with the Supreme Court did
not stop the present case from proceeding in the district
court.
9.
The Court finds that it properly decided the motion to
dismiss following the mandate of the Third Circuit,
notwithstanding Plaintiff’s filing of a petition with the
Supreme Court.
10.
The motion for summary judgment was filed more than four
months after entry of the April 13, 2011 Memorandum Opinion
and Order dismissing this case.
Plaintiff had thirty days
from March 2, 2011 to oppose the motion to dismiss but
failed to do so, and also failed to timely file a motion for
reconsideration in accordance with Local Civil Rule 7.1(i).
See L. Civ. R. 7.1(i) (motion for reconsideration shall be
served and filed within 14 days after entry of order on
original motion).
11.
The Court finds that Plaintiff’s motion for summary judgment
is untimely.
Plaintiff argues that he did not previously
oppose the motion to dismiss because of the pendency of his
petition with the Supreme Court, but as noted above such
filing did not stay the present litigation.2
Plaintiff
2. When the Court entered the March 2, 2011 Order granting
Plaintiff thirty days to respond to the motion to dismiss,
Plaintiff did not at that time inform the Court of his belief
that the motion to dismiss would not be heard until the Supreme
Court decided the petition. Rather, Plaintiff waited more than
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provides no other excuse for his failure to timely raise the
arguments now proffered in the motion for summary judgment,
and the Court will not entertain at this time Plaintiff’s
attempt to re-litigate in a closed case issues that were
already decided.
CONSEQUENTLY, for the reasons set forth above and for good
cause shown:
IT IS on this 9th day of November 2011,
ORDERED that Plaintiff’s motion for summary judgment [Doc.
No. 21] shall be, and is hereby, DENIED.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
four months after the dismissal of this action to raise arguments
in opposition to the motion to dismiss.
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