RIVERS v. NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, LOCAL 673 et al
OPINION & ORDER granting 22 Motion to Dismiss as to defendant Cunningham only. Signed by Judge Stanley R. Chesler on 4/13/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-3070 (SRC)
OPINION & ORDER
NATIONAL ASSOCIATION OF LETTER :
CARRIERS, AFL-CIO, LOCAL 673 et al., :
This matter comes before the Court on the motion to dismiss the Complaint for failure to
serve by Defendant Daniel Cunningham (“Cunningham”). For the reasons stated below, the
motion to dismiss will be granted.
This case arises from a dispute between an employee and his union over an employment
grievance. The background to this motion is as follows. On February 1, 2016, this Court entered
an Opinion and Order which: 1) granted in part and denied in part Defendants’ motion to dismiss
the Complaint; and 2) Ordered that, as to Defendant Cunningham only, the motion to dismiss for
failure to effect service was denied, and the time for service was extended for 30 days from the
date of entry of the Order. Cunningham now moves again to dismiss the Complaint for failure to
Plaintiff does not dispute that Cunningham has still not been properly served. Plaintiff
argues, however, that the effect of the dismissals in the February 1, 2016 Opinion and Order was to
eliminate all remaining claims against Cunningham, and so service was impossible. Plaintiff is
wrong. Count IV of the Complaint expressly asserts a claim against Cunningham for violation of
the New Jersey Civil Rights Act. The Opinion and Order of February 1, 2016 clearly stated that
Count IV had not been properly challenged on that motion and would not be addressed at that
time. Count IV remained an active claim against Daniel Cunningham after entry of the February
1, 2016 Order, but not after today: Cunningham’s motion to dismiss for failure to effect proper
service will be granted and, as to Defendant Cunningham only, the Complaint will be dismissed
The Court has considered the potential for a dismissal without prejudice to operate as a
dismissal with prejudice if the statute of limitations has run. Cf. Balyan v. Baldwin, 566 Fed.
Appx. 175, 176 (3d Cir. 2014). This Court concludes that, nonetheless, a decision to dismiss
under these circumstances is just. The Court denied the previous motion to dismiss for failure to
effect service when Plaintiff offered an explanation for the failure, and gave Plaintiff an extension
of time to serve. Rather than make an effort to comply with the service requirement, Plaintiff
allowed the extended time to serve to expire. It was only after Cunningham renewed the motion to
dismiss for failure to serve that Plaintiff took action. The action Plaintiff took, however, was to
file an Amended Complaint without obtaining Defendants’ consent or seeking leave of the Court,
contrary to the requirements of Federal Rule of Civil Procedure 15(a)(2), asserting new claims
against Cunningham which Plaintiff believes will be viable.
Plaintiff has still not served Cunningham with the Complaint in compliance with Federal
Rule of Civil Procedure 4(m), which states:
Time Limit for Service. If 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 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.
Because Plaintiff has not shown good cause for his failure to serve Cunningham, even after the
time for service was extended, Rule 4(m) requires a dismissal without prejudice.1
For these reasons,
IT IS on this 13th day of April, 2016,
ORDERED that Cunningham’s motion to dismiss the Complaint (Docket Entry No. 22) is
GRANTED and, as to Defendant Cunningham only, the Complaint is hereby DISMISSED
s/ Stanley R. Chesler
Stanley R. Chesler, U.S.D.J.
It has now been almost one year since the filing of the Complaint.
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