REARDON v. MONDELLI et al
Filing
92
OPINION. Signed by Judge Jerome B. Simandle on 9/6/2018. (rtm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN E. REARDON,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
15-5520 (JBS-AMD)
v.
OFFICER MONDELLI, et al.,
MEMORANDUM OPINION
Defendants.
SIMANDLE, District Judge:
In this matter, Plaintiff pro se John E. Reardon
(“Plaintiff”) generally alleges that certain government
officials violated his constitutional and statutory rights in
connection with a June 20, 1990 arrest and subsequent criminal
trial. On several occasions, Plaintiff has moved for Default,
Default Judgment, and other various forms of relief. [See Docket
Items 18, 23, 43, 62, 73, and 80.] Each time, the Court held
that Plaintiff was not entitled to Default, Default Judgment, or
any other form of relief because he failed to serve the summons
and Complaint on any of the defendants. [See Docket Items 47,
60, 69, and 85.] Plaintiff has still not properly served any of
the defendants, nor has he shown good cause for his failure to
do so. Accordingly, and for the reasons discussed below, the
Complaint will be dismissed pursuant to Federal Rule of Civil
Procedure 4(m). The Court finds as follows:
1.
On July 9, 2015, Plaintiff filed a Complaint against
Defendants Officer Mondelli, Judge Greene, Judge Steinberg,
Prosecutor Caplan, D. Sgt. Bruce Dawson, Frank J. Soltis,
Prosecutor Andrew Rossetti, James P. Mulvihill, Howard C.
Gilfert, Mary Eva Colalillo, Warren Faulk, Sgt. A.L. Simon,
Officer James Leason, James Farmer, “Criminal and Civil Docket
Clerks of Camden County from June 1990 to February 1992,” and
Mr. S. Keven Walshe (collectively, “Defendants”). [Docket Item
1.] Plaintiff subsequently filed with the Clerk of Court several
documents, wherein he attached receipts of certified mailings to
Defendants (and others not named in the Complaint) who resided
in New Jersey and Florida. [See Docket Items 9, 10, 16, 17, and
21.] Plaintiff then moved for Default and Default Judgment
against the Defendants. [See Docket Items 18, 23, 43, 73, and
80.]
2.
Each time he moved for Default or Default Judgment,
Plaintiff argued, among other things, he had properly served all
Defendants by certified mail, and he was, therefore, entitled to
the entry of Default by the Clerk of Court and Default Judgment
by the Court. But, as the Court explained then [see generally
Docket Items 60, 73, and 85], service by certified mail is not
permitted in Florida unless a defendant accepts service by
returning a waiver of service of the summons to the plaintiff,
see Fla. R. Civ. P. 1.070(i), in New Jersey, unless a defendant
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“answers the complaint or otherwise appears in response thereto”
within 60 days following mailed service, see N.J. Ct. R. 4:4–
4(c), or, in New Jersey, “[i]f it appears by affidavit
satisfying the requirements of R[ule] 4:4-5(b) that despite
diligent effort and inquiry personal service cannot be made in
accordance with paragraph (a) of this rule,” N.J. Ct. R. 4:44(b)(1); see also Fed. R. Civ. P. 4(e) (authorizing a plaintiff
in federal court to use any means of service provided by the law
of the state in which service is to be affected).
3.
On August 13, 2018, the Clerk of Court notified
Plaintiff that the Complaint would be dismissed pursuant to Fed.
R. Civ. P. 4(m) if he failed to establish that service of the
summons and Complaint had been effected within 90 days of the
filing of the Complaint or unless the Plaintiff otherwise showed
good cause why this action should not be dismissed. [Docket Item
89.] The deadline for Mr. Reardon to respond to the Rule 4(m)
Notice was September 4, 2018. [Id.] The following week,
Plaintiff timely filed an “Affidavit,” wherein he argued, inter
alia, “[t]he court has no power, right, privilege, authority or
right to deny the plaintiff of default and a trial date as to
damages or to default judgment given this case has been
willfully, intentionally, deliberately and knowingly default
judgment given the fact that this case is over 3 years old and
for which the defendants are clearly in default for failure to
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timely plead or otherwise defend.” [Docket Item 90 at ¶ 7.]
Plaintiff further argues, “[t]he court’s rulings, opinions and
judgments have improperly ruled and implied in its orders that
F. R. Civ. P. 4 trumps rules 12(a)(1)(A)(i), 12(b)(2)-(5) and
12(h) when it does no such thing and this court has
deliberately, intentionally[,] willfully and knowingly so held
contrary to the case law below.” [Id. at ¶ 8.] Plaintiff did not
file proof of service with the Clerk of Court or otherwise show
good cause for his failure to timely and properly serve
Defendants within 90 days of the filing of the Complaint.
4.
Fed. R. Civ. P. 4(m) provides that the district court
shall dismiss a complaint after notice to the plaintiff if
service of the complaint is not made upon a defendant within 90
days after the filing. “A District Court must extend the time
for service, however, where a plaintiff demonstrates good cause
for the failure to timely serve the defendant.” Maltezos v.
Giannakouros, 522 F. App’x 106, 108 (3d Cir. 2013) (citing
McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d
Cir. 1998). “Even if a plaintiff fails to show good cause, the
District Court must still consider whether any additional
factors warrant a discretionary extension of time.” Maltezos,
522 F. App’x at 108 (citing Petrucelli v. Bohringer & Ratzinger,
GMBH, 46 F.3d 1298, 1305-06 (3d Cir. 1995)). Prior to dismissing
an action upon its own motion for failure to effect timely
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service, the district court must give notice to the plaintiff,
Liu v. Oriental Buffet, 134 F. App’x 544, 546 (3d Cir. 2005), as
has occurred here. Furthermore, the Court had previously
instructed Mr. Reardon on how to make proper personal service of
the summons and Complaint as required by the rules and the
requirements of due process.
5.
Here, 1,155 days have passed between the filing of the
Complaint on July 9, 2015 and the date of this Memorandum
Opinion. As noted above, the Court has explained to Plaintiff on
several occasions that service by certified mail is not
permitted under federal, New Jersey, or Florida law. Personal
service is required by an adult other than Mr. Reardon. Rather
than follow the Court’s guidance and attempt to properly serve
Defendants, Plaintiff instead renewed his requests for Default
and Default Judgment based on the same erroneous arguments
previously made and filed a motion for relief from the Court’s
prior Orders denying his requests for Default and Default
Judgment.
6.
On August 13, 2018, the Court provided notice to
Plaintiff that the Complaint would be dismissed unless he
established that service was properly effectuated within 90 days
of the filing of the Complaint or otherwise demonstrated good
cause why the action should not be dismissed. [Docket Item 89.]
Plaintiff has still not properly served the Complaint on any
5
Defendant, nor has he provided any explanation for his failure
to do so, except that he disagrees with the Court’s holdings
that service by certified mail is not permitted under federal,
New Jersey, or Florida law in these circumstances. Accordingly,
the Court finds Plaintiff has not demonstrated good cause for
failure to timely serve Defendants and declines to exercise its
discretion to provide him with a further extension of time.
7.
The Court notes that Plaintiff has appealed [Docket
Item 87] the Court’s most recent Order, dated July 9, 2018.
[Docket Item 85.] Notwithstanding Plaintiff’s appeal to the
Third Circuit, Appeal No. 18-2766, this Court retains
jurisdiction over the current matter because the Court’s Order
denying Plaintiff’s motion for relief from miscellaneous orders
and “for an order dismissing the case, granting default and a
trial date as to damages or permission to reserve lawsuit” is
not a “final decision,” see 28 U.S.C. § 1291, and because this
Court did not certify that the July 9, 2018 Order “involves a
controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination
of the litigation,” nor has the Third Circuit, in its
discretion, permitted an appeal to be taken from such an Order,
see 28 U.S.C. § 1292(b). The filing of an appeal from a non-
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appealable order does not divest this Court of its authority to
act.
8.
For these reasons, the Complaint will be dismissed
pursuant to Fed. R. Civ. P. 4(m). The accompanying Order will be
entered.
September 6, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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