DINNERSTEIN v. BURLINGTON COUNTY COLLEGE

Filing 11

MEMORANDUM OPINION AND ORDER, ORDERED that Pltf's letter 9 dated 9/16/2014, which the court construes as a motion is hereby GRANTED; ORDERED that Pltf's complaint filed on 9/18/2013 shall be reinstated; ORDERED that the Court shall grant Pltf a 60 day extension of time to serve process in accordance with Federal Rule of Civil Procedure 4, etc. Signed by Judge Noel L. Hillman on 1/14/2015. (dmr) (n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
MITCHELL DINNERSTEIN,
Plaintiff,

Civil No. 13-5598 (NLH/KMW)

v.
MEMORANDUM OPINION
AND ORDER

BURLINGTON COUNTY COLLEGE,
Defendant.
__________________________________
HILLMAN, District Judge:

This matter having come before the Court by way of letter
[Doc. No. 9] of Plaintiff pro se, Mitchell Dinnerstein, dated
September 16, 2014 asking the Court to reopen his case; and
IT APPEARING THAT:
1.

Plaintiff received a Notice of Right to Sue from the

United States Equal Employment Opportunity Commission
(hereafter, “EEOC”) on August 12, 2013, wherein the EEOC stated
that it was unable to conclude that Plaintiff’s civil rights had
been violated.

The Notice stated that Plaintiff must file suit

within ninety days of receipt of the Notice.
2.

Plaintiff filed a complaint on September 18, 2013

alleging a violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e et seq., for employment
discrimination based upon religion.

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3.

The Court entered a Notice of Call for Dismissal [Doc.

No. 6] on August 22, 2014 which required Plaintiff to submit an
affidavit setting forth his good faith efforts to prosecute the
case by no later than September 2, 2014.

Plaintiff failed to

file an affidavit in accordance with the Notice of Call for
Dismissal.
4.

On September 3, 2014, the Court issued an Order of

Dismissal [Doc. No. 7] based upon Plaintiff’s failure to
prosecute under Local Civil Rule 41.1.
5.

By letter dated September 4, 2014, Plaintiff responded

to the Notice of Call for Dismissal, in which he noted that the
same issues are also pending before the New Jersey Supreme
Court, and he did not believe he would be acting in good faith
by “presenting the case in Federal Court, while the case in
state court is still going on.”

(Letter [Doc. No. 8] 1, Sept.

4, 2014.)
6.

It does not appear that Plaintiff received the

September 3, 2014 Order dismissing his case when he wrote the
September 4, 2014 letter to the Court.
7.

Plaintiff wrote another letter to the Court, dated

September 16, 2014, in which he acknowledged that he was late in
responding to the Notice of Call for Dismissal but states that
it was an “error.”

(Letter [Doc. No. 9] 2, Sept. 16, 2014.)

Plaintiff also requested that the Court reopen the case.
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(Id.)

8.

The Court construes Plaintiff’s September 16, 2014

letter as a motion to reopen pursuant to Federal Rule of Civil
Procedure 60(b).

Initially, the Court notes that although

Plaintiff’s complaint was dismissed without prejudice, Rule
60(b) -- which provides the mechanism for relief from a final
judgment, order, or proceeding -- is applicable to the September
3, 2014 Order of Dismissal at this time.

“Ordinarily, an order

dismissing a complaint without prejudice is not a final order as
long as the plaintiff may cure the deficiency and refile the
complaint.”
2002).

Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir.

However, when a complaint is dismissed without

prejudice, it is “‘treated as if it never existed[,]’” and “the
dismissal of a complaint . . . after the statute of limitations
has run forecloses the plaintiff's ability to remedy the
deficiency underlying the dismissal and refile the complaint.”
Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir. 2005).
9.

Plaintiff was required to file suit within ninety days

of his receipt of the EEOC Notice of Right to Sue, which is
dated August 12, 2013.

See 42 U.S.C. § 2000e-5(f)(1).

Plaintiff received the Notice of Right to Sue by at least
September 18, 2013, as it was attached to his filing with this
Court on that date.

At this time, Plaintiff is well beyond the

ninety-day time to file suit again and, as such, the Order of

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Dismissal now constitutes a final order to which Rule 60(b)
applies.
10.

Rule 60(b)(1) provides that “[o]n motion and just

terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect[.]”

Fed. R. Civ.

P. 60(b)(1).
11.

In determining whether a party is entitled to relief

from dismissal because of “excusable neglect,” a court must look
at the totality of the circumstances.

See George Harms Constr.

Co., Inc. v. Chao, 371 F.3d 156, 163 (3d Cir. 2004).

Courts

should consider “the danger of prejudice to the [non-movant],
the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the
movant acted in good faith.”

Pioneer Inv. Servs. v. Brunswick

Assocs., 507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74
(1993); George Harms Constr., 371 F.3d at 163 (adopting the
Pioneer facts).
12.

In addition, a Rule 60(b) motion must be made “within

a reasonable time” and “no more than a year after the entry of
the judgment or order or the date of the proceeding.”
Civ. P. 60(c).

Fed. R.

In this case, Plaintiff’s request to reopen was

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filed less than two weeks after entry of the Order of Dismissal.
Plaintiff’s request was therefore made within a reasonable time.
13.

Additionally, the Pioneer factors support the

reopening of this case.

Defendant has not yet appeared in this

action and there is no basis to believe that Defendant would be
prejudiced by the reopening of this case, given the short lapse
of time between the closing of the case on September 3, 2014 and
Plaintiff’s request to reopen the case on September 16, 2014. 1
Similarly, the length of delay was minimal and has had no impact
on the judicial proceedings.

Although Plaintiff provides no

explanation for his failure to timely respond to the Notice of
Call of Dismissal, he has now responded and has written the
Court on three occasions in an effort to prosecute the case.

In

fact, although Plaintiff’s response to the Notice of Call for
Dismissal was late, it appears he attempted to respond before

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Although Plaintiff states that he served Defendant by sending a
copy of the summons via certified mail, it is unclear whether
Defendant was properly served in accordance with the Federal
Rules of Civil Procedure. See generally Fed. R. Civ. P. 4. The
Court notes that Defendant is a county college, and the legal
status of this entity is not apparent from the record.
Therefore, at this time the Court is unable to determine which
subsection of Rule 4 governs service of process to evaluate
whether Defendant has been properly served. See, e.g., Fed. R.
Civ. P. 4(e), 4(h), and 4(j). The Court will provide Plaintiff
a sixty-day extension of time to effect service of process, so
as to provide Plaintiff an opportunity to evaluate whether
service was proper and, if it was not, to properly serve
Defendant so that this case may proceed on the merits.
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learning that the case had already been dismissed.

The Court

also notes Plaintiff’s assumption that the case could not
proceed until a separate state action became final. 2
14.

Because there is no prejudice to Defendant, the length

of delay is minimal and had no impact on the judicial
proceedings, and Plaintiff appears to be acting in good faith to
prosecute his claims at this time, the Court finds that there
was “excusable neglect” in Plaintiff’s failure to respond to the
Notice of Call for Dismissal.

The Court also notes the Third

Circuit’s preference to decide cases on the merits.

Hritz v.

Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (“[W]e have
repeatedly stated our preference that cases be disposed of on
the merits whenever practicable.”).

The Court will therefore

grant Plaintiff’s request to reopen the case at this time.
ACCORDINGLY, it is on this

14th

day of January, 2015,

ORDERED that Plaintiff’s letter [Doc. No. 9] dated
September 16, 2014, which the Court construes as a motion

2

The Court notes only that Plaintiff believed -- apparently in
good faith -- that he could not proceed with this case until the
state court proceedings were final. The Court makes no finding
as to whether this case could have actually proceeded given the
pendency of the state court action. Indeed, the Court is
unaware of the nature of the proceedings pending in state court.
In any event, the Court notes that the Supreme Court of New
Jersey has denied Plaintiff’s petition for certification in the
state court action, and it therefore appears that any state
court proceedings are final at this time. (See “On Petition for
Certification” annexed to Letter from Plaintiff [Doc. No. 10],
Nov. 19, 2014.)
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pursuant to Federal Rule of Civil Procedure 60(b)(1), shall be,
and the same hereby is, GRANTED; and it is further
ORDERED that Plaintiff’s complaint filed on September 18,
2013 shall be reinstated; and it is further
ORDERED that the Court shall grant Plaintiff a sixty (60)
day extension of time to serve process in accordance with
Federal Rule of Civil Procedure 4; and it is further
ORDERED that Plaintiff’s failure to prosecute this case may
result in the dismissal of this action pursuant to Local Civil
Rule 41.1(a).

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey

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