KAPLAN v. KAPLAN (PITALI) et al

Filing 10

OPINION. Signed by Judge Kevin McNulty on 1/20/2015. (anr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD P. KAPLAN,
Plaintiff,
V.

Civ. No. 13-1882 (KM) (MAIl)
:

OPINION

MARGHERITA A. KAPLAN (PITALI), et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.

The petitioner, Richard P. Kaplan, appearing pro se, is a federal prisoner currently
incarcerated at F.C.I. Otisville in the State of New York. He moves to reopen this action, which
he voluntarily dismissed over a year ago. The now-dismissed amended complaint asserted claims
arising from Mr. Kaplan’s divorce from defendant Margherita Kaplan. On October 28, 2013, this
Court dismissed that amended complaint without prejudice, based on Mr. Kaplan’s notice of
voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(I)(A)(i). (See Dkt. Nos. 6,
8.) The Court denied Mr. Kaplan’s pending applications to proceed in förrnapauperis as moot.
Over one year later, on December 24, 2014, this Court received Mr. Kaplan’s motion to
reopen the action. He asserts that defendant Margherita Kaplan and political figures are
conspiring against him to keep him confined and that they have “set Mr. Kaplan up.” (Dkt. No.
9 at p. 1.) I will order the Clerk to reopen this action temporarily, for the limited purpose of
permitting consideration of the motion, but I will deny the motion itself.
At the time he voluntarily dismissed the amended complaint, Mr. Kaplan had neither paid
the filing fee nor been granted injörmapauperis status. Because one or the other is required, this
action was never properly filed in the first place. “Reopening” it would be a hollow gesture—a

restoration to dismissable status. And Mr. Kaplan’s motion to reopen the case does not include a
filing fee or a new application to proceed inJörma paaperis which, at this late date, would be
required.
The proper procedure is to require that Mr. Kaplan file a new civil action. See Great Am.
Ins. Co. ofNY. v. Day, No. 12-2295, 2013 WL 254563, at *1 (D. Md. Jan. 22, 2013) (denying
plaintiff’s motion to reopen and requiring that a new action be filed where plaintiff previously
filed a notice of voluntary dismissal without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(l)(A)(i) (citing Adams v. Lever Bros. Co., 874 F.2d 393, 395 (7th Cir. 1989)).
Mr. Kaplan voluntarily dismissed this case pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). That dismissal was without prejudice to reassertion of the claims, but they must
be reasserted on a proper procedural basis.
Even now, Mr. Kaplan has not taken the basic step of proffering a filing fee or submitting
an updated application to proceed informapauperis. The allegations he now wishes to pursue
appear to be distinct from those asserted in the old complaint.
If Mr. Kaplan wishes to proceed, he must (a) initiate a new civil action; (b) file and serve
a new complaint containing the allegations he wishes to pursue; and (c) include either the
required filing fee or a properly supported application to proceed informa pauperis The motion
to reopen is denied. An appropriate order accompanies this opinion.
Dated: January 20, 2015

KEVfN MCNULTY
United States Districud e

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