SEXTON et al v. RIZZETTA et al

Filing 11

OPINION. Signed by Judge Robert B. Kugler on 7/28/2015. (tf, )

NOT FOR PUBLICATION

(Doc. No. 10)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_____________________________________
:
ALLYSON SEXTON, individually
:
and on behalf of the Estate of
:
BRETT J. SEXTON,
:
:
Plaintiffs,
:
Civil No. 15-3181 (RBK/AMD)
:
v.
:
OPINION
:
ANTHONY J. RIZZETTA D.O. et al.,
:
:
Defendants.
:
_____________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court on the Motion of Allyson Sexton, individually and as
general administratrix and administratrix ad prosequendum of the Estate of Brett J. Sexton
(“Plaintiffs”), to Vacate the Court’s Order of July 15, 2015, dismissing this matter pursuant to
Fed. R. Civ. P. 12(h)(3), pursuant to Fed. R. Civ. P. 60(b)(1). (Doc. No. 10.) For the reasons
stated herein, Plaintiffs’ Motion to Vacate will be GRANTED.
I. BACKGROUND
On May 5, 2015, Plaintiffs filed this wrongful death suit on behalf of Decedent, Brett J.
Sexton, who died on July 15, 2013, while in the care of Defendants at the Cape May Regional
Medical Center in Cape May, New Jersey. (Original Complaint (“Compl.”) (Doc. No. 1),
Jurisdiction ¶¶ 17-19.)
Plaintiffs alleged that jurisdiction in this case was proper under 28 U.S.C. § 1332. (See
id., Jurisdiction ¶ 20.) After reviewing Plaintiffs’ Original Complaint, the Court issued an Order

on May 7, 2015, outlining pleading deficiencies with respect to the citizenship of the parties.
(Doc. No. 3.) The Original Complaint did not allege sufficient facts to establish that complete
diversity of citizenship existed between the parties in order establish jurisdiction under § 1332.
(Id.) Rather than dismiss the Original Complaint outright, the Court’s Order of May 7, 2015,
specifically identified the pleading deficiencies and directed Plaintiffs to file an Amended
Complaint no later than May 21, 2015, or face dismissal of the Complaint for lack of subjectmatter jurisdiction. (Id.)
On May 15, 2015, Plaintiffs filed the First Amended Complaint (“FAC”), again alleging
that jurisdiction existed based on diversity of citizenship under § 1332. (FAC (Doc. No. 4),
Jurisdiction ¶ 20.) However, upon review of the FAC the Court issued another Order on July 15,
2015, this time dismissing the FAC for lack of subject-matter jurisdiction pursuant to Fed. R.
Civ. P. 12(h)(3), as Plaintiffs had again failed to properly allege the citizenship of each party.
(Doc. No. 9.)
On July 22, 2015, Plaintiffs filed the instant Motion to Vacate the Court’s Order of July
15, 2015, pursuant to Fed. R. Civ. P. 60(b)(1). (Doc. No. 10.)
II. DISCUSSION AND ANALYSIS
Plaintiffs argue that this Court’s Order of Dismissal should be vacated under Federal
Rule of Civil Procedure 60(b)(1), because its entry resulted from counsel’s mistake and
inadvertence, Defendants will not suffer any real prejudice, the delay as a result of counsel’s
mistake and inadvertence is minimal, and counsel did not act in bad faith. They claim their
counsel intended to amend the citizenship allegations in the Original Complaint to comply with
the Court’s May 7, 2015, Order when the FAC was filed, but due to the mistake and inadvertence
of counsel, the citizenship allegations were not adequate. (Pls.’ Br. at 1-2.)

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Rule 60(b)(1) allows a party to seek relief from a final judgment, order, or proceeding for
“mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The Court
finds that such an error falls within the category of “excusable neglect” as set forth in Rule
60(b)(1).
In determining whether an act constitutes “excusable neglect,” it is established within the
Third Circuit that a court must consider: “(1) prejudice to the adverse party; (2) length of the
delay and its potential impact on the judicial proceeding; (3) reason for the delay, including
whether it was within reasonable control of the movant; and (4) whether the movant acted in
good faith.” See Fisco v. Lamplight Farms, Inc., Civ. No. 11–3855, 2013 WL 6253192, at *1
(D.N.J. Dec. 4, 2013) (quoting Murray v. Walgreen Co., 470 Fed. App’x 97, 98 (3d Cir. 2012)).
However, a Court should not give “any one of these four factors dispositive weight.” DeJesus v.
Mohammad, Civ. No. 12–7007, 2013 WL 5963018, at *2 (D.N.J. Nov. 7, 2013) (citing George
Harms Constr. Co., Inc. v. Chao, 371 F.3d 156 (3d Cir. 2004). In weighing these factors,
“clients must be held accountable for the acts and omissions of their attorneys.” Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396 (1993)).
The Court finds that the third factor outlined in Fisco weighs against relief, as there is
little doubt that the cause for the delay was reasonably within Plaintiffs’ control. As
acknowledged by Plaintiffs, counsel was aware of the pleading deficiencies in the Original
Complaint and set out to address them in the FAC. However, taking into account the other three
factors, the Court finds that these weigh in favor of granting Plaintiffs’ Motion to Vacate the
Order of dismissal under Rule 60(b)(1).
First, there is little prejudice to Defendants since they have not filed an answer or any
other pleadings in response to Plaintiffs’ complaints at this time; thus there is “no apparent threat

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of hardship” and “reinstatement of [Plaintiffs’] complaint will not impose any additional
discovery-related burden on the opposing party since discovery has not commenced.” DeJesus,
2013 WL 5963018, at *3.
Additionally, the Court finds that the length of the delay is insignificant, as Plaintiffs filed
their FAC within the time set out by the Court in its May 7, 2015, Order to amend, and filed the
present Motion to Vacate one week after the Court’s July 15, 2015, Order of dismissal.
Lastly, there is no indication that Plaintiffs acted in bad faith. The Third Circuit has
found that “a party acts in good faith where it acts with reasonable haste to investigate the
problem and to take available steps toward remedy.” Kohl’s Dep’t Stores, Inc. v. Levco-Route
46 Assocs., L.P., 121 Fed. App’x 971, 976 (3d Cir. 2005) (citations omitted). As noted above,
Plaintiffs filed their Motion Vacate within one week of the Court’s July 15, 2015, Order, and
included a proposed second amended complaint which addresses the Court’s concerns over the
allegations of citizenship in Plaintiffs’ FAC. It appears that as soon as Plaintiffs recognized their
mistake, they sought to correct it. The Court finds that this is indicative of good faith.
III. CONCLUSION
For the reasons stated above, Plaintiffs’ Motion to Vacate will be GRANTED. An
appropriate Order shall issue today.

Dated:

7/28/2015

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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