BARRENTINE v. NEW JERSEY TRANSIT

Filing 35

MEMORANDUM OPINION/ORDER ADOPTING REPORT AND RECOMMENDATIONS DENYING 25 Motion to Dismiss filed by NEW JERSEY TRANSIT, 34 Report and Recommendations, GRANTING 28 Motion for Extension of Time filed by GABE S. BARRENTINE. Signed by Judge Kevin McNulty on 8/28/13. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
GABE S. BARRENTINE,
Civ. No. 12-3936 (KM)
Plaintiff,
MEMORANDUM OPINION &
ORDER

:

v.
NEW JERSEY TRANSIT and
AMALGAMATED TRANSIT UNION
LOCAL 822, et al,
Defendants.

THIS MATTER having come before the Court by way of a motion to
dismiss for ineffective service of process (“Motion to Dismiss”) filed by
defendant New Jersey Transit (“Defendant”) [ECF No. 25]; and Plaintiff Gabe
Barrentine having filed a cross motion to extend the time to serve Defendant
(“Cross Motion”) and in opposition to the Motion to Dismiss [ECF No. 28]; and,
on July 25, 2013, Magistrate Judge Hammer having submitted a Report and
Recommendation (the “R&R”) [ECF No. 34]; and the parties having made no
objection; and the Court, pursuant to Federal Rule of Procedure 78, having
considered all of the foregoing and other documents in the record; and for good
cause appearing; the Court decides as follows:
(1) On June 27, 2012, Plaintiff filed an application to proceed in forma
pauperis (“IFP”) and an application for the appointment of pro bono
counsel. [ECF No. 1-2.] On July 2, 2012, the Court denied Plaintiff’s
pro bono counsel application but granted Plaintiff’s IFP application.
[ECF No. 5.] On July 12, 2012, a summons was issued as to
Defendant. [ECF No. 7.]
(2) Plaintiff proceeded pro se until January 9, 2013. He maintains that at
the time he filed the original complaint pro Se, he did not understand
the law regarding service of process.
(3) Magistrate Judge Hammer’s R&R recommends denying Defendant’s
Motion to Dismiss Plaintiff’s Complaint [ECF No. 25] and granting
Plaintiff’s Cross Motion to extend the time to serve Defendant [ECF
No. 28] by thirty (30) days.
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(4) Neither party has filed an objection to the R&R within fourteen days of
July 25, 2013, when it was filed and served. See Local Civil Rule
72.1(c) (14-day deadline for objections).
(5) This Court reviews the Magistrate’s Report and Recommendation
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b)(3). “A judge of
the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1); see also US. v. Raddatz, 447 U.S. 667, 680 (1980)
(stating that the district court judge has broad discretion in accepting
or rejecting the magistrate’s recommendation).
(6) If there are no objections, the district court has discretion to choose
an appropriate standard of review. See Thomas v. Am, 474 U.S. 140,
154 (1985) (the federal statute neither prohibits nor requires a
particular standard if no objections are filed); Goney v. Clark, 749
F.2d 5, 7 (3d Cir. 1984). At a minimum, “[w]hat is not objected to, the
district court reviews under the plain error or manifest injustice
standard.” Megaparts v. Highcom Security, No. 09-4052, 2010 U.S.
Dist. LEXIS 63497, at *4 (D.N.J. June 25, 2010); see, e.g., Banks v.
Gallagher, 686 F. Supp. 2d 499, 505 (M.D. Pa. 2009); Cruz v. Chater,
990 F. Supp. 375, 376—78 (M.D. Pa. 1998) (citing Advisory Committee
notes on Federal Rule of Civil Procedure 72(b), implementing 28
U.S.C. § 636(b)(1)(C)).
(7) The standard of review, however, is not critical. I agree with
Magistrate Judge Hammer that the Motion to Dismiss for ineffective
service of process should be denied. Based on Plaintiff’s certification, I
agree with Judge Hammer that Plaintiff made a good faith, diligent
effort to effect service of process on Defendant. Moreover, granting the
Motion to Dismiss after the expiration of the statute of limitations
would be contrary to the Third Circuit’s stated preference to decide
cases on the merits. Therefore, I will exercise my discretion and grant
Plaintiff an extension of time to effect service.
IT IS THEREFORE this 28th day of August, 2013,

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ORDERED that Magistrate Judge Hammer’s R&R is adopted in full.
Defendant’s Motion to Dismiss is DENIED and Plaintiff’s Cross Motion to
extend the time to serve Defendant by thirty (30) days is GRANTED.

/
KEIN MCNULTY, U.S.D.J(,/

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