DEJESUS v. MOHAMMAD et al
Filing
14
OPINION. Signed by Judge Noel L. Hillman on 9/22/2014. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARDO DEJESUS,
Civil No. 12-7007(NLH/KMW)
Plaintiff,
OPINION
v.
DR. SHAKIL MOHAMMAD, M.D., et
al.,
Defendants.
APPEARANCES:
Conrad J. Benedetto, Esquire
Law Offices of Conrad J. Benedetto
1814 East Route 70
Suite 350
Cherry Hill, New Jersey 08003
Attorney for Plaintiff Richardo DeJesus
HILLMAN, District Judge
This matter comes before the Court by way of Plaintiff
Richardo DeJesus’ third motion [Doc. No. 13] seeking to
reinstate this matter based on the proposed fourth amended
complaint, attached as Exhibit A to Plaintiff’s motion.
The
Court has considered Plaintiff’s motion, reviewed the proposed
fourth amended complaint and decides this matter pursuant to
Federal Rule of Civil Procedure 78.
For the reasons expressed below, Plaintiff’s motion will be
granted.
I.
BACKGROUND
Plaintiff filed the original complaint [Doc. No. 1] in this
action on November 12, 2012, asserting that the Court could
properly exercise jurisdiction in this case pursuant to 28
U.S.C. § 1332 based on the diversity of citizenship of the
parties and an amount in controversy in excess of $75,000.
(Compl. [Doc. No. 1] ¶ A.)
Upon review of Plaintiff’s original
complaint, the Court issued an Order to Show Cause on November
15, 2012 outlining various pleading deficiencies with respect to
the citizenship of several Defendants such that the original
complaint did not allege sufficient facts to establish complete
diversity of citizenship existed between the parties.
Show Cause [Doc. No. 3] 2-4, Nov. 15, 2012.)
(Order to
The November 15,
2012 Order to Show Cause specifically set forth the requirements
for properly pleading the citizenship of the parties in order to
correct these pleading errors and further directed Plaintiff to
file an amended complaint within ten days or face dismissal of
the complaint for lack of subject matter jurisdiction.
(Id. at
2-5.)
In response to the November 15, 2012 Order to Show Cause,
Plaintiff filed an untimely amended complaint [Doc. No. 4] on
November 27, 2012, one day after the time provided for by the
Order to Show Cause.
Despite its untimely nature, the Court
reviewed Plaintiff’s amended complaint and issued a second Order
to Show Cause (“OTSC No. 2”) on December 4, 2012.
OTCS No. 2
set forth additional pleading deficiencies contained in the
amended complaint regarding the citizenship of three Defendants
and noted that Plaintiff had again failed to establish the
requisite diversity of citizenship between the parties.
to Show Cause [Doc. No. 5] 2-6, Dec. 4, 2012.)
(Order
As with the
original deficient complaint, rather than dismiss the deficient
amended complaint for lack of subject matter jurisdiction, the
Court granted Plaintiff leave to file a second amended complaint
within ten days.
(Id. at 6-7.)
Pursuant to OTSC No. 2, Plaintiff was required to file a
second amended complaint by December 14, 2012.
Plaintiff failed
to file the second amended complaint, or to seek an extension of
this deadline, within the time provided by OTSC No. 2.
Therefore, approximately one week after the deadline for filing
Plaintiff’s second amended complaint expired, the Court entered
an Order dismissing Plaintiff’s case without prejudice for lack
of subject matter jurisdiction.
2012.)
(Order [Doc. No. 6] 1, Dec. 21,
Six days later, Plaintiff filed his first motion to
reinstate the complaint.
Compl. [Doc. No. 7].)
(Pl.’s First Mot. to Reinstate the
Attached as Exhibit A to the motion was a
copy of Plaintiff’s proposed second amended complaint.
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The
Court subsequently denied Plaintiff’s first motion to reinstate
the complaint by Opinion and Order dated January 10, 2013 based
on continued pleading deficiencies. (Op. and Order [Doc. Nos. 8,
9] Jan. 10, 2013.)
As noted in the January 10, 2013 Opinion,
the proposed second amended complaint attached as Exhibit A to
the first motion was “actually an identical version of the
Amended Complaint which Plaintiff filed on November 27, 2012.”
(Op. [Doc. No. 8] 7, Jan. 10, 2013.)
That is, the proposed
second amended complaint attached to Plaintiff’s motion was “the
exact same document previously filed with the Court over a month
[before] and [contained] the exact same pleading deficiencies
regarding diversity jurisdiction.”
(Id. at 8.)
As a result,
the Court denied Plaintiff’s first motion to reinstate the
complaint.
Approximately four months later, Plaintiff filed a second
motion [Doc. No. 10] to reinstate the complaint.
Attached as
Exhibit A to the second motion to reinstate was a proposed third
amended complaint.
By Opinion and Order dated November 7, 2013,
the Court denied Plaintiff’s second motion to reinstate without
prejudice. (Op. and Order [Doc. Nos. 11, 12] Nov. 7, 2013.)
Construing Plaintiff’s motion as one seeking to vacate the
dismissal of the compliant pursuant to Federal Rule of Civil
4
Procedure 60(b), the Court concluded that Plaintiff’s failure to
timely file a second amended complaint in accordance with OTSC
No. 2 constituted excusable neglect under the standard governing
Federal Rule of Civil Procedure 60(b)(1).
10, Nov. 7, 2013.)
(Op. [Doc. No. 11] 7-
Although Plaintiff’s proffered reasons for
failing to timely comply with OTCS II were unpersuasive, the
Court found that the totality of the circumstances nonetheless
weighed in favor of granting Plaintiff’s motion to reinstate the
complaint.
(Id. at 10.)
However, the Court was forced to deny
Plaintiff’s motion to reinstate on other grounds because
Plaintiff still neglected to properly plead diversity of
citizenship jurisdiction.
(Id. at 10.)
Specifically, Plaintiff failed to correctly set forth the
citizenship of Defendant Westfield Medical Center, L.P.
11.)
(Id. at
While the proposed third amended complaint indicated that
Westfield Medical Center is a limited partnership and listed the
citizenship of its general partner, WMC, Inc. – a Pennsylvania
corporation with its principal place of business in Pennsylvania
– the Court noted that this information alone was insufficient.
(Id. at 11.)
In order to determine the citizenship of
partnerships, the proposed third amended complaint needed to set
forth “the citizenship of all of [the partnership’s] partners,
5
not just the general partners.”
See Swiger v. Allegheny Energy,
Inc., 540 F.3d 179, 187 (3d Cir. 2008).
Moreover, partnerships
are defined as entities consisting of at least “two or more
persons.”
Kramer v. Scientific Control Corp., 534 F.2d 1085,
1092 n.15 (3d Cir. 1976).
Therefore, the Court concluded that
Plaintiff’s assertion that WMC, Inc. was the “only listed
partner of Westfield Medical Center, L.P.,” was not adequate to
establish the citizenship of Defendant Westfield Medical Center,
L.P. for jurisdictional purposes because Plaintiff failed to
make any factual averments as to the identity and citizenship of
the limited partners of this Defendant.
Approximately forty days later, Plaintiff filed a third
motion to reinstate the complaint, which is currently before the
Court.
Attached as Exhibit A to the present motion is a copy of
Plaintiff’s proposed fourth amended complaint.
II.
ANALYSIS
Much like the second motion to reinstate the complaint,
Plaintiff’s current motion again fails to specify the authority
under which he seeks relief from the prior termination of his
case.
However, as with the second motion, the Court again
construes Plaintiff’s third motion to reinstate as one
attempting to vacate the dismissal of Plaintiff’s complaint
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pursuant to Federal Rule of Civil Procedure 60(b).
As previously set forth in the Court’s November 7, 2013
Opinion, a motion to reopen a case may be treated as a motion
for relief from a final judgment pursuant to Rule 60(b) or as a
motion for reconsideration pursuant to Rule 59(e) and Local
Civil Rule 7.1(i).
Cir. 2007).
Choi v. Kim, 258 F. App'x 413, 414-15 (3d
Motions made pursuant to Rule 60 “must be made
within a reasonable time ... [and for motions made under
subsections] (1) (2) and (3) no more than a year after the entry
of the judgment.”
FED. R. CIV. P. 60(b).
Here, the docket
reflects that Plaintiff’s third motion to reinstate was filed
within one year of the Court’s November 7, 2013 Opinion and
Order, and given that Plaintiff failed to file the motion within
fourteen days of the Court’s Opinion and Order denying the
second motion to reinstate the complaint, the Court will
construe Plaintiff’s motion as one for relief from final
judgment pursuant to Rule 60(b).
Rule 60(b) provides in pertinent part that “[o]n a motion
and just terms, the court may relieve the party or its legal
representative from a final judgment, order or proceeding for
... (1) mistake, inadvertence, surprise, or excusable neglect;
[or] ... (6) any other reason that justifies relief.”
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FED. R.
CIV. P. 60(b).
Moreover, as previously explained in the November
7, 2013 Opinion, Rule 60(b) applies to final orders.
See
Constr. Drilling, Inc. v. Chusid, 131 F. App'x 366, 369 (3d Cir.
2005) (observing that the denial of a motion made pursuant to
Rule 60(b) constitutes a final order under 28 U.S.C. § 1291).
Here, the Court previously denied Plaintiff’s second motion to
reinstate his complaint in an Opinion and Order [Doc. Nos. 11,
12] dated November 7, 2013.
Therefore, Rule 60(b) is applicable
to the present motion.
In this circumstance, the Court must once again analyze
whether the Plaintiff’s failure to file a timely second amended
complaint constitutes excusable neglect under subsection (1) of
Rule 60(b). 1
Accordingly, the Court’s analysis in the November
7, 2013 Opinion denying Plaintiff’s second motion to reinstate
is also applicable to the present motion.
The Court, therefore,
sets forth below a detailed summary of the November 7, 2013
Opinion.
Using the totality of the circumstances test set forth
in Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship,
1
As
the Court previously concluded in the November 7, 2013
Opinion, subsection (6) of Rule 60(b) – the catchall provision
of Rule 60(b) – is not applicable here because that particular
provision becomes relevant only under extraordinary
circumstances and only if relief is not warranted under Rule
60(b)(1-5). See Gonzalez v. Crosby, 545 U.S. 524, 535-36
(2005); (Op. [Doc. No. 11] 7, Nov. 7, 2013.)
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507 U.S. 380, 389 (1993), the November 7, 2013 Opinion weighed
the following four factors to determine if reinstatement of the
complaint was proper: (1) prejudice to the opposing party; (2)
the length of the delay and its potential impact on judicial
proceedings; (3) the reason for the delay and whether it was
within the movant’s control; and (4) whether the movant acted in
good faith.
Evaluating these factors, the Court concluded that
although Plaintiff’s untimely delay in responding to the Court’s
OTSC No. 2 was the result of circumstances fully within his
control, granting the second motion to reinstate would not
result in prejudice to the opposing party, and would not have an
adverse impact on the judicial proceedings, nor was the motion
filed in bad faith.
(Op. [Doc. No. 11] 7-10, Nov. 7, 2013.)
Therefore, the Court found that Plaintiff’s neglect in failing
to timely respond to the Court’s OTSC No. 2 was excusable given
that the Pioneer factors weighed in favor of granting the motion
to reinstate.
With respect to Plaintiff’s third motion to reinstate, the
Pioneer factors again weigh in favor of granting the motion to
reinstate so long as there are no pleading deficiencies in the
proposed fourth amended complaint and complete diversity of
citizenship is properly pled with respect to each Defendant.
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Although it remains unchanged that the delay in answering the
Court’s OTSC No. 2 was within Plaintiff’s control, the opposing
parties would not be burdened with additional discovery costs
here because Defendants still have not been served with any
version of the complaint and no discovery has occurred to date.
This case is still in its earliest stages, just like it was at
the time of the November 7, 2013 Opinion and Order, and thus
there would be no adverse impact on the judicial proceedings by
granting Plaintiff’s third motion to reinstate the complaint.
Moreover, as the Court previously found in the November 7, 2013
Opinion, there is no indication that Plaintiff acted in bad
faith in filing the present motion.
In sum, the Pioneer factors
weigh in favor of granting Plaintiff’s third motion to reinstate
the complaint.
Turning to the issue of the Court’s jurisdiction, the law
is clear that Plaintiff bears the burden of properly pleading
the basis on which the Court may exercise jurisdiction over this
matter.
Accordingly, the Court now considers the jurisdictional
allegations of the proposed fourth amended complaint submitted
in support of the present motion.
Although Plaintiff submitted
four prior versions of the complaint in this matter – all of
which contained multiple pleading deficiencies - the proposed
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fourth amended complaint, Plaintiff’s fifth attempt, adequately
avers the basis on which the Court has jurisdiction to hear the
case in accordance with 28 U.S.C. § 1332.
With respect to
Plaintiff’s citizenship, the proposed fourth amended complaint
properly pleads that Plaintiff is a citizen of the State of New
Jersey.
(Fourth Am. Compl., Parties, ¶ 2).
As to Defendant
Shakil Mohammed, M.D., Plaintiff properly avers that Mohammed is
a citizen of the Commonwealth of Pennsylvania.
(Id. ¶ 3.)
The
proposed fourth amended complaint also properly pleads the
citizenship of Defendant Shakil Orthopedic Associates, Inc. for
purposes of diversity jurisdiction because Plaintiff clearly
avers that this Defendant is a Pennsylvania corporation with its
principal place of business in Pennsylvania, and is therefore a
citizen of Pennsylvania. (Id. ¶ 4).
With respect to Defendant Westfield Medical Center, L.P.,
the proposed fourth amended complaint indicates that this
Defendant is a limited partnership.
(Id. ¶ 5).
For diversity
purposes, the citizenship of a partnership is determined by the
citizenship of all of its partners – both general and limited.
Swiger, 540 F.3d at 182.
The proposed fourth amended complaint
lists WMC Management, Inc. as the general partner of Defendant
Westfield Medical Center, L.P. and properly avers that this
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general partner is a Pennsylvania corporation with its principal
place of business in Pennsylvania, and is thus a citizen of
Pennsylvania.
(Fourth Am. Compl., Parties, ¶ 6).
The proposed
fourth amended complaint then lists the following individuals
and entities as the limited partners of Defendant Westfield
Medical Center, L.P.: (1) Yasin Khan; (2) Elizabeth Khan; (3)
Lehigh Valley Pain Management, Inc.; (4) Tilghman Medical
Center, Inc.; (5) Tilghman Urgant Care, Inc.; 2 (6) Tilghman
Urgent Care, Inc.; (7) Westfield Group Services, Inc.; (8)
Westfield Management, Inc.; (9) WMCN Management, Inc.; and (10)
Westfield North Management, Inc.
(Id. ¶¶ 7(a)-(j).)
The two individuals, Yasin Khan and Elizabeth Khan, are
clearly identified and averred to be citizens of Pennsylvania.
(Id. ¶¶ 7(a)-(b).)
The remaining eight limited partners -
Lehigh Valley Pain Management, Inc., Tilghman Medical Center,
Inc., Tilghman Urgant Care, Inc., Tilghman Urgent Care, Inc.,
Westfield Group Services, Inc., Westfield Management, Inc., WMCN
Management, Inc., and Westfield North Management, Inc. - are all
Pennsylvania corporations that maintain their principal places
2
It is unclear from the proposed fourth amended complaint
whether Defendants Tilghman Urgant Care, Inc. and Tilghman
Urgent Care, Inc. are two separate entities or whether the
former listing is the result of a typographical error.
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of business in Pennsylvania, and thus are citizens of
Pennsylvania. 3
(Id. ¶ 7(c)-(k).)
It thus appears that all of
the partners of Defendant Westfield Medical Center, L.P., are
citizens of Pennsylvania, and therefore this Defendant is also a
citizen of the Commonwealth of Pennsylvania for purposes of
diversity.
Based on the averments made in the proposed fourth
amended complaint, the Court is satisfied that complete
diversity of citizenship exists between the parties here under
28 U.S.C. § 1332, given that Plaintiff is a citizen of New
Jersey and all of the Defendants are citizens of Pennsylvania.
III. CONCLUSION
For the reasons set forth herein, Plaintiff’s third motion
[Doc. No. 13] seeking to reinstate the proposed fourth amended
complaint is granted.
Plaintiff shall file the proposed fourth
amended complaint on the docket within five (5) days.
An Order
consistent with this Opinion will be entered.
Date: September 22, 2014
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
3
It appears from the proposed fourth amended complaint that
all of the limited partners – both the individuals and the
entities – have 4825 West Tilghman Street, Allentown,
Pennsylvania as their address or principal place of business.
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