RODRIGUEZ v. THE STATE OF NEW JERSEY et al

Filing 42

OPINION. Signed by Judge Noel L. Hillman on 2/12/2021. (rtm, )

Case 1:18-cv-11166-NLH-JS Document 42 Filed 02/16/21 Page 1 of 8 PageID: 246

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JEAN EMMANUEL RODRIGUEZ,

Civil Action No. 18-11166

Plaintiff,

OPINION

v.
THE STATE OF NEW JERSEY, et
al.
Defendants.
APPEARANCES:
JEAN EMMANUEL RODRIGUEZ
100 NEW ROAD
APT. F3
SOMERS POINT, NJ 08244

Plaintiff appearing pro se
JESSICA ANN SAMPOLI
OFFICE OF THE ATTORNEY GENERAL OF NJ
25 MARKET ST, 7TH FL, WEST WING
PO BOX 116
TRENTON, NJ 08625
Counsel for Defendant the State of New Jersey
THOMAS B. REYNOLDS
REYNOLDS & HORN, P.C.
A PROFESSIONAL CORPORATION
116 S. RALEEIGH AVENUE
APARTMENT 9B
ATLANTIC CITY, NJ 08401
Counsel for Defendants Hamilton Township
Police and Gerhard Thoresen
HILLMAN, District Judge
This matter comes before the Court on an Order to Show
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Cause why the claims against Defendants New Jersey Transit
Corporation and Richard Gray should not be dismissed for failure
to serve the summons and complaint within the time set by
Federal Rule of Civil Procedure 4.

(ECF No. 41.)

Plaintiff

Jean Emmanuel Rodriguez (“Plaintiff”) failed to respond to the
Court’s Order.

For the reasons stated below, the Court will

dismiss New Jersey Transit Corporation and Richard Gray for
failure to serve.

FED. R. CIV. P. 4(m).
BACKGROUND

The factual and procedural history of this matter is set
forth in this Court’s previous Opinion, Rodriguez v. N.J., No.
18-11166, 2021 WL 165106 (D.N.J. Jan. 19, 2021), and need not be
fully repeated.
26, 2018.

Plaintiff filed suit against Defendants on June

(ECF No. 1.)

Plaintiff also filed an application to

proceed without prepayment of fees (“in forma pauperis” or “IFP”
application) pursuant to 28 U.S.C. § 1915(a)(1).

(Id.)

On

December 11, 2018, this Court screened Plaintiff’s complaint,
granted his IFP application, and ordered the Clerk to file the
Complaint and mail to Plaintiff a transmittal letter explaining
the procedure for completing the United States Marshals Service
(“USMS”) 285 Forms (“USMS 285 Form”).
On December 12, 2018, the Clerk’s Office sent a letter to
the Plaintiff notifying him that he must complete and return to
the USMS the USMS 285 Forms to allow him to serve his complaint
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on Defendants through the USMS.

(ECF No. 3.)

The Clerk’s

Office explained that Plaintiff must complete and return the
USMS 285 Forms to the USMS within thirty days and explicitly
warned that “the USMS Will NOT serve the summons and complaint
unless it receives a form for that defendant.”

(Id.)

Moreover,

the Clerk’s Office placed Plaintiff on notice that he is
required to serve his complaint on each Defendant within 90 days
of the date the complaint was filed.

The Clerk’s Office further

explained that if within 90 days of the filing of the complaint
Plaintiff has not made service or requested an extension of
time, then the ”Court may dismiss this action for failure to
prosecute under Rules 4(m) and 41(b) of the Federal Rules of
Civil Procedure.”

(Id.)

It appears that Plaintiff never provided the USMS with the
required completed USMS 285 Form for Defendant Richard Gray that
would allow Plaintiff to serve his complaint on Defendant Gray
despite being notified such form must be completed for each
named defendant.

(ECF No. 5.)

It does not appear that

Plaintiff has ever made any attempt at all to serve Defendant
Richard Gray.
In addition, it appears that the USMS determined that the
address provided for the New Jersey Transit Corporation did not
exist when the Marshal attempted to complete service on February
6, 2019.

(ECF No. 8.)

On August 21, 2019, Plaintiff requested
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that the summons be served to the New Jersey Transit Corporation
pursuant to Federal Rule of Civil Procedure 4.

(ECF No. 20.)

In this request, Plaintiff failed to provide the Court with a
new address for the New Jersey Transit Corporation following the
USMS’s conclusion that the initial address provided did not
exist.

(Id.)

Beyond this, the Court is unaware of any

additional attempts by Plaintiff to successfully serve the New
Jersey Transit Corporation.
The docket does not indicate any further communication
regarding Defendant New Jersey Transit Corporation and Richard
Gray until this Court issued its Order to Show Cause on January
19, 2021.

In the Order to Show Cause, this Court required

Plaintiff to show cause within 20 days as to why his claims
against Defendants New Jersey Transit Corporation and Richard
Gray should not be dismissed for lack of prosecution for his
failure to effect service.

(ECF No. 41.)

Plaintiff has failed

to file a response to this Court’s Order to Show Cause.
DISCUSSION
Plaintiff’s Complaint against Defendants Richard Gray and
New Jersey Transit Corporation will be dismissed for Plaintiff’s
failure to comply with Federal Rule of Civil Procedure 4(m).
Rule 4(m) provides, “[i]f a defendant is not served within 90
days after the complaint is filed, the court - on motion or on
its own after notice to the plaintiff - must dismiss the action
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without prejudice against that defendant or order that service
be made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.”

FED. R. CIV. P. 4(m).

Showing good cause “‘requires a demonstration of good faith on
the part of the party seeking enlargement and some reasonable
basis for noncompliance within the time specified by the rule.’”
John Vorpahl v. The Kullman Law Firm, No. 17-1693, 2018 WL
813879, at *2 (D.N.J. Feb. 8, 2018) (quoting Veal v. United
States, 84 F. App’x 253, 256 (3d Cir. 2004)).
Three factors are considered when determining whether good
cause exists: “‘(1) reasonableness of plaintiff’s efforts to
serve, (2) prejudice to the defendant by lack of timely service,
and (3) whether plaintiff moved for an enlargement of time to
serve.’”

Id. (quoting MCI Telecommunications Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995)).

Even if

a plaintiff fails to show good cause, however, the district
court must still consider whether any additional factors warrant
a discretionary extension of time.

Petrucelli v. Bohringer &

Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995).

Although courts

must liberally construe submissions by pro se parties,
Plaintiff’s pro se status does not exempt him from compliance
with this Court’s applicable rules.

See Jones v. Sec’y

Pennsylvania Dep’t of Corr., 589 F. App’x 591, 593 (3d Cir.
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2014) (“Although we liberally construe pro se filings,
[plaintiff] is not exempt from procedural rules or the
consequences of failing to comply with them.”).
The Court finds that Plaintiff has not shown good cause for
failing to serve Defendants New Jersey Transit Corporation and
Richard Gray.

“In considering ‘good cause,’ ‘the primary focus

is on the plaintiff’s reasons for not complying with the time
limit in the first place.”

Ashley v. Metelow, No. 15-3153, 2019

WL 6130749, at *2 (D.N.J. Nov. 19, 2019)(quoting MCI Telecomms.
Corp., 71 F.3d at 1097).

Plaintiff has not provided the Court

with any information as to why he has not served Defendants New
Jersey Transit Corporation and Richard Gray over two years since
the Complaint was filed, which is well past the Federal Rule of
Civil Procedure’s 90-day requirement.
Even if Plaintiff was reasonably diligent in his initial
service efforts to serve Defendant New Jersey Transit
Corporation, he was not diligent after his first failed attempt
to serve Defendant New Jersey Transit Corporation.

The USMS

returned Defendant New Jersey Transit Corporation’s summons
unexecuted on February 7, 2019.

In the “Remarks” section, the

Marshals wrote: “Address doesn’t exist.”

(ECF No. 8.)

Plaintiff waited until August 21, 2019 to write the Court to
request that the summons be served to the New Jersey Transit
Corporation pursuant to Federal Rule of Civil Procedure 4.
6

In

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this request, Plaintiff failed to provide the Court with a new
address for the New Jersey Transit Corporation following the
USMS’s conclusion that the initial address provided did not
exist.
Plaintiff also failed to provide any reasoning for failing
to address serving Defendant New Jersey Transit Corporation
until 6 months after the summons was returned unexecuted.
Plaintiff has failed to make any additional attempt to properly
serve New Jersey Transit Corporation or any attempt at all to
serve Defendant Richard Gray.

“Even allowing for Plaintiff’s

pro se status, given the time he has had to address the problem
it cannot be reasonably concluded that he has been diligent or
made a good faith effort to do so.”

Ashley, 2019 WL 6130749, at

*2 (quoting Landy v. Irizarry, 884 F. Supp. 788, 793 (S.D.N.Y.
1994)).
While Defendants Richard Gray and New Jersey Transit
Corporation may not be prejudiced by the lack of timely service,
Plaintiff has not provided a response to this Court’s Order to
Show Cause or sought an extension of time to serve Defendants
Richard Gray and New Jersey Transit Corporation.

Moreover,

while the Court recognizes its power to do so, after an
examination of the record as a whole, there are no apparent
additional factors that would warrant a discretionary extension
of time by the Court sua sponte.
7

On balance, the proper remedy

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here is dismissal without prejudice.

Thus, Plaintiff’s lack of

compliance with Rule 4(m) warrants the dismissal of his claims
against Defendants Richard Gray and New Jersey Transit
Corporation without prejudice.
CONCLUSION
For the above reasons, the claims against Defendants
Richard Gray and New Jersey Transit Corporation will be
dismissed.
An appropriate Order will be entered.
Date: February 12, 2021
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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