SPELLMAN v. EXPRESS DYNAMICS, LLC
OPINION. Signed by Judge William H. Walls on 9/24/2015. (anr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY
Civ. No. 2:15-cv-03257 (WHW) (CLW)
EXPRESS DYNAMICS, LLC, d/b/a
Walls, Senior District Judge
Plaintiff Raymond $pellman moves to reopen his case against Defendant Express
Dynamics, LLC, d/b/a WorkXpress (“Express”), issue a summons, and extend time to effectuate
service. See Motion to Reopen Case, ECF No. 16. The motion is granted.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background of this case was set forth in the Court’s July 28 Opinion, ECF No.
12, and need not be repeated here. Speliman, a New Jersey resident, initiated this action pro se in
New Jersey Superior Court on March 31, 2015. Compl.
Express removed the action. Notice of Removal
1, ECF No. 1-1. On May 11, 2015,
ECF No. 1. Express then moved to dismiss
Speilman’s complaint on May 15, 2015. Def.’s Mot. Dismiss, ECF No. 2. Speliman opposed
dismissal and cross-moved for remand to New Jersey Superior Court. Pl.’s Mot. Remand, ECF
No. 5; Pl.’s Opp., ECF No. 11. On July 28, 2015, the Court denied Spellman’s motion to remand,
finding that removal had been proper because the case met the requirements for diversity
jurisdiction set by 28 U.S.C.
§ 1332. Opinion at 3-6. The Court then dismissed the case for
improper service of process because the summons that Express received had not been signed by
the Clerk of the New Jersey Superior Court, as required by New Jersey Court Rule 4:4-2. Id.
NOT FOR PUBLICATION
Speilman now moves to reopen the case, issue a summons, and request an extension of
time to effectuate service of his complaint. Mot. to Reopen at 2. Afier retaining his current counsel
on August 31, 2015, Speliman filed a Request for Issuance of Summons with the Clerk of Court
on September 1, but a summons was not issued because the case had been closed. Id. at ¶J 10-12.
When a case has been removed to federal court and “service has not been perfected prior
to removal” or the “process served proves to be defective,” 28 U.S.C.
144$ provides that
“process or service may be completed or new process issued in the same manner as in cases
originally filed in” federal district court. See Rice v. Alpha Sec., Inc., 556 F. App’x 257, 260 (4th
Cir. 2014). Under Fed. R. Civ. P. 4(m), a Court is required to extend time for service where a
plaintiff demonstrates good cause. Cain v. Abraxas, 209 F. App’x 94, 96 (3d Cir. 2006). Good
cause is demonstrated by a showing of good faith and some reasonable basis for noncompliance
within the time specified by the rule. Id. Even where good cause is not shown, a Court may,
within its discretion, decide to extend time for service. Id. Pro se status is a factor that will
“frequently weigh in favor of exercising such discretion.” Id.
Spellman’s prose status before August 31, 2015 weighs in favor of an extension of time,
and his attempt to file a timely request to issue summons on September 1, 2015 demonstrates
good faith and a reasonable basis for noncompliance. The Court finds that there is good cause to
grant Spellman’s motion. An appropriate order follows.
Date: September, 2015
iam H. WWs
United States Senior District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?