GRIFFIN v. UNITED STATES OF AMERICA
Filing
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OPINION. Signed by Judge Robert B. Kugler on 10/17/2013. (dmr)
NOT FOR PUBLICATION
(Document No. 6)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
JUSTIN GRIFFIN,
:
:
Plaintiff,
:
:
v.
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:
:
UNITED STATES OF AMERICA,
:
:
Defendant.
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___________________________________ :
Civil No. 12-6137 (RBK)
OPINION
KUGLER, United States District Judge:
This matter comes before the Court on the motion of Justin Griffin (“Plaintiff”) to vacate
the Court’s March 7, 2013, Order dismissing this matter pursuant to L. Civ. R. 41.1(a) and for an
Order granting Plaintiff an additional thirty days in which to re-serve the summons and
complaint. The Court construes this motion as one under Fed. R. Civ. P. 60(b) for relief from a
final order. For the reasons stated herein, Plaintiff’s motion is GRANTED.
I.
BACKGROUND
On October 1, 2012, Plaintiff filed this negligence suit against the United States of
America (“Defendant”) under the Federal Tort Claims Act, 28 U.S.C. § 1346 and § 2671.
(Compl., Doc. No. 1.) The suit sought money damages for alleged injuries to Plaintiff’s person
and damage to his motor vehicle as a result of an automobile accident on or about October 7,
2010. (Id.) Plaintiff alleges that his injuries and the damage to his property resulted from the
negligence of George E. Atkinson III, an employee of the United States Postal Service. (Compl.
¶¶ 6-12.)
Plaintiff was initially represented in this action by Brian Reagan, Esq., of Mullen &
Reagan LLC. (Pl.’s Mot. ¶ 4, Doc. No. 6.) After filing Plaintiff’s Complaint, Mr. Reagan avers
that he attempted service by mail on Defendant on October 5, 2012. He specifically states that
on this date:
2 copies of the Summons and Complaint, and Notice of lawsuit and Request for Waiver
of Service of Summons, and Waiver of Service forms were sent to the United States
Postal Service, and the Managing Counsel Civil Practice Section of the US postal Service
in Washington DC. A copy was also mailed to Postal Service Tort Claims examiner Ann
Mandernach.
(Pl.’s Mot. Ex. B ¶ 4.) Mr. Reagan did not, however, serve the United States.
Subsequently, Mr. Reagan contacted “the Postal Tort Claims adjuster Mandernach” and
states that he was advised that “the matter was assigned for the filing of an answer and defense
on December 21, 2012 to Postal Attorney’s office and was being handled through US attorney
James Clark and Kevin Coffey.” (Id. ¶ 5.) Mr. Reagan states that he was told by Ms.
Mandernach that “she understood that that office would respond to the complaint.” (Id.) Mr.
Reagan then called Mr. Coffey, who referred Mr. Reagan to John Pine. (Id. ¶ 6.) Mr. Pine
contacted Mr. Reagan on February 1, 2013, and “indicated that he could not ascertain whether an
answer would be filed and suggested that personal service be made on the US Attorneys’s [sic]
office in Camden, NJ with mailed service to the Postal service and US attorney’s Office in
Washington.” (Id.)
On February 6, 2013, Mr. Reagan served a copy of the Summons and Complaint by first
class and certified mail on the U.S. Attorney General’s Office in Washington, D.C., and in
Camden, New Jersey, and on the Managing Counsel-Civil Practice Section of the U.S. Postal
Service. (Id. ¶ 7; Pl.’s Mot. Ex. D.)
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On February 8, 2013, a process server served the United States Attorney’s Office in
Camden, New Jersey with a Summons and Complaint on Plaintiff’s behalf. (Pl.’s Mot. Ex. A ¶
10, Ex. B ¶ 8, Ex. E.) The declaration of the process server on the return of service was signed
and notarized on February 11, 2013. (Pl.’s Mot. Ex. E.)
Although Plaintiff was obligated to serve his Complaint and Summons on Defendant
within 120 days after filing his Complaint pursuant to Fed. R. Civ. P. 4(m), he did not do so and
the 120-day period expired on January 29, 2013. Accordingly, on February 21, 2013, this Court
issued a Notice of Call for Dismissal pursuant to L. Civ. R. 41.1(a), noting that Plaintiff’s matter
had been pending for more than 120 days without any proceeding having taken place, and stating
that this case would be dismissed for lack of prosecution unless sufficient cause to the contrary
was shown. (Doc. No. 3.) As no further action was taken after the Court’s Notice, this case was
dismissed without prejudice on March 7, 2013. (Doc. No. 4.)
Throughout the 120-day period, Plaintiff attempted to contact Mr. Reagan about the
status of his case, but did not receive a response. (Pl.’s Mot. Ex. A ¶ 12.) Plaintiff remained
unaware of the Court’s Notice and subsequent Order until on or about May 1, 2013, when
Plaintiff’s father, an attorney, checked the online docket to ascertain the status of this matter.
(Id.) After discovering that his case had been dismissed, Plaintiff immediately retained Mr. Brett
Datto, Esq. to replace Mr. Reagan as counsel. (Id.) Mr. Datto appeared on Plaintiff’s behalf on
May 30, 2013. (Doc. No. 5.) That same day, Plaintiff filed the instant motion to vacate the
Court’s March 7, 2013, Order and requested that the Court afford Plaintiff an additional thirty
days in which to re-serve Defendant and proceed with the prosecution of his claim.
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II.
DISCUSSION AND ANALYSIS
Although Plaintiff does not explicitly invoke Rule 60(b)(1) in his motion or argue that his
failure to comply with the Federal Rules of Civil Procedure was due to “excusable neglect”, the
Court construes his motion as one for relief on “excusable neglect” grounds under Rule 60(b)(1).
Rule 60(b) permits a party to seek relief from a final judgment, order, or proceeding for
“mistake, inadvertence, surprise or excusable neglect,” among other reasons that are not
applicable to Plaintiff’s instant motion. Fed. R. Civ. P. 60(b)(1). The decision to grant or deny
relief pursuant to Rule 60(b) lies in the “sound discretion of the trial court guided by accepted
legal principles applied in light of all relevant circumstances.” Tobin v. Gordon, 614 F. Supp.
514, 530 (D. Del. 2009) (quoting Ross v. Meagan, 638 F.2d 646, 648 (3d Cir. 1981)). A party is
entitled to relief under Rule 60(b) “whenever such action is appropriate to accomplish justice,”
but only in “extraordinary circumstances.” Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 864 (1988) (internal quotations omitted). A showing of “extraordinary circumstances”
usually suggests “that the party is faultless in the delay.” Pioneer Inv. Servs. v. Brunswick
Assocs., 507 U.S. 380, 393 (1993). However, the Court may grant relief, if the fault is
“excusable” and the party seeks relief within one year. Id.
In Pioneer Insurance Services v. New Brunswick Associates, the Supreme Court set forth
four factors to be considered when analyzing whether a party is entitled to relief under Rule
60(b)(1). 507 U.S. 380 (1993). Those factors are: “(1) danger of prejudice to the non-movants;
(2) the length of delay; (3) the potential impact on judicial proceedings; and (4) the reason for the
delay including whether it was within the reasonable control of the movant and whether he acted
in good faith.” Id. at 395. Of chief import, however, was the Court’s emphasis that determining
whether “excusable neglect” has been established is an equitable inquiry, and requires that the
Court consider the totality of the circumstances. Id.
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Here, the length of Plaintiff’s delay in bringing the instant motion and the potential
impact on judicial proceedings weigh in favor of granting relief. Although the Court issued its
Notice of Call for Dismissal on February 21, 2013, and dismissed this case on March 7, 2013,
Plaintiff was unaware of these developments as calls to Mr. Reagan regarding the status of his
case went unanswered. (Pl.’s Mot. Ex. A ¶ 12.) On May 1, 2013, as soon as Plaintiff learned
that his case had been dismissed, he retained new counsel. Twenty-nine days later, and
approximately two months after the Court’s Order of Dismissal, Plaintiff filed the instant motion.
(Doc. No. 6.) The Court finds that this two-month delay, when considered in light of the oneyear time frame in which Plaintiff could bring a Rule 60(b) motion, was insignificant. See, e.g.,
In re Cendant Corp. PRIDES Litig., 235 F.3d 176, 183 (2000) (the “delay in bringing the Rule
60(b) motion was three weeks . . . [t]his delay was trivial in light of the one-year outer limit for
bringing a Rule 60(b) motion imposed by the Federal Rules of Civil Procedure, and under [In re
O’Brien Environmental Energy, Inc., 188 F.3d 116 (1999)], in which we concluded that a twomonth delay was insignificant as a matter of law”). Thus, this factor weighs in favor of finding
that Plaintiff has demonstrated excusable neglect.
The Court next turns to the cause of Plaintiff’s delay. Here, the cause of the delay was
Mr. Reagan’s—and by extension, Plaintiff’s—failure to properly comply with the requirements
for service of a complaint and summons on a United States agency. See Fed. R. Civ. P. 4(i), (m).
Mr. Reagan avers that the delay can be attributed to his understanding that this matter had been
assigned to the “Postal Attorney’s office” and that a response to Plaintiff’s Complaint was
forthcoming. (Pl.’s Mot. Ex. B ¶ 5.) Defendant argues, however, that whether service was
properly made was entirely within Plaintiff’s control and that this misunderstanding does not
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provide grounds for relief under Rule 60(b)(1). (Def.’s Mem. in Opp’n to Pl.’s Mot. 9, Doc. No.
7.)
Although it was within Mr. Reagan’s, and thus Plaintiff’s, reasonable control to properly
serve Defendant within the time provided by the Federal Rules, excusable neglect does not only
apply “to those situations where the failure to comply is a result of circumstances beyond the
[Plaintiff’s] reasonable control.” O’Brien, 188 F.3d at 125. Further, where a party acts with
“reasonable haste to investigate [a] problem and to take available steps toward remedy,” the
party will be found to have acted in good faith. In re Cendant Corp., 235 F.3d at 184.
Plaintiff states that he attempted to contact Mr. Reagan a number of times to discuss the
status of his case, but these attempts were futile. (Pl.’s Mot. Ex. A ¶ 12.) Because Mr. Reagan
did not respond to Plaintiff’s inquiries, Plaintiff had no knowledge of the Court’s Notice or
subsequent Order dismissing his case. In light of Mr. Reagan’s failure to inform Plaintiff as to
the status of his case, the fact that once Plaintiff discovered that his suit had been dismissed, he
acted with “reasonable haste” to remedy the problems by retaining new counsel and promptly
filing the instant motion, and the fact that there is no evidence that Plaintiff or Mr. Reagan acted
in bad faith, the Court concludes that this factor weighs in favor of granting Plaintiff’s motion.
See, e.g., Mays v. Wakefern Food Corp., No. 00-cv-6182, 2002 WL 32348528, at *2 (E.D. Pa.
July 19, 2002) (concluding that “in light of plaintiff’s allegations concerning his attorney’s
failure to inform him of pending motions when withdrawing from the case” the Pioneer factors
“weigh in favor of granting plaintiff’s motion pursuant to Rule 60(b)(1)”).
Finally, Plaintiff argues that Defendant will not be prejudiced should the Court vacate its
March 7, 2013, Order. The Third Circuit has held that under Rule 60(b), there is no prejudice
absent loss of available evidence or “increased potential for fraud or collusion.” See Feliciano v.
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Reliant Tooling Co., 691 F.2d 653, 657 (3d Cir.1982); Boley v. Kaymark, 123 F.3d 756, 759 (3d
Cir. 1997) (same). Here, based on the limited record at the Court’s disposal, the Court is unable
to make a determination as to potential prejudice. However, in considering the totality of the
circumstances—Plaintiff’s good faith and prompt action in filing the instant motion, and his
allegations concerning Mr. Reagan’s failure to keep him informed about developments in his
case—the Court finds that Plaintiff has established excusable neglect pursuant to Fed. R. Civ. P.
60(b)(1).
III.
CONCLUSION
For the reasons stated above, the Court will grant Plaintiff’s motion. An appropriate
order shall issue today.
Dated: 10/17/2013
/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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