JONES v. PI KAPPA ALPHA INTERNATIONAL FRATERNITY, INC. et al
Filing
82
MEMORANDUM AND ORDER granting in part and denying in part 26 Motion to Dismiss ; granting in part and denying in part 31 Motion to Dismiss. Signed by Judge Kevin McNulty on 9/14/17. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JANE JONES,
Plaintiff,
V.
PT KAPPA ALPHA INTERNATIONAL
FRATERNITY, INC.; BRETT HELBERG;
DAVID MALINOWSKI; P1 KAPPA ALPHA
LOCAL CHAPTER MU
FRATERNITY
ZETA at RAMAPO COLLEGE; SKENDER
AGIC; JOHN HOGAN; JOSHUA WILLIAM
NEWMAN; RAMAPO COLLEGE OF NEW
JERSEY; RAMAPO COLLEGE BOARD OF
TRUSTEES; VINCENT MARKOWSKI;
PETER MERCER; CORY ROSENKRANZ;
MELISSA VAN DER WALL; JORDYN
MASSOOD; CHRISTOPHER RMNONE;
JUSTIN SOMMERS; JOHN/JANE DOES
1-20; and XYZ CORPORATIONS 1-10,
--
Civ. No. 2: 16-cv-7720-KM-MAH
MEMORANDUM and ORDER
Defendants.
MCNULTY, U.S.D.J.:
Three defendants, Jordyn Massood, Christopher Rainone, and Justin
Sommers, have filed a motion to dismiss the complaint (ECF no. 26). Another
defendant, Skender Agic has filed a substantially similar motion to dismiss.
(ECF no. 31). For the reasons stated herein, the motions will be denied in part
and, on consent, granted in part.
A. Failure to accomplish service within the Rule 4(m) deadline
These four defendants’ motions are primarily motions under Fed. R. Civ.
P. 12(b)(5) to dismiss the complaint because the plaintiff failed to serve these
defendants within 90 days after filing, as required by Fed. R. Civ. P. 4(m).
The complaint was filed on October 21, 2016. The Rule 4(m) deadline for
service expired on January 19, 2017. Waivers of service were delivered, but
never executed.
The plaintiffs response to the motions was twofold. She filed a
memorandum in opposition, and simultaneously moved for an extension of
time to accomplish service. (ECF nos. 40, 41, 49, 50) The two, however, are
really one; the plaintiff maintained that there was good cause to extend the
service deadline, and that once the deadline was extended, the basis for the
motion to dismiss would be removed.
Today, Magistrate Judge Hammer filed an Opinion (ECF no. 80) and
Order (ECF no. 81) in which, among other things, he granted the plaintiff’s
motions to extend the time for service. Suffice it to say that Judge found that
plaintiff had demonstrated good cause and a reasonable basis for the delay.
The record, as surveyed in Judge Hammer’s Opinion, will easily bear the
interpretation that the defendants have attempted to evade service. As to all
four of these defendants, Judge Hammer extended the Rule 4(m) deadline. As
to Rthmone, who had not yet been served, Judge Hammer authorized
substituted service through his attorney of record.
The primary basis for the motions to dismiss—failure to effect service
within the Rule 4(m) deadline—has thus been removed. The Rule 12(b)(5)
motions to dismiss, insofar as they rest on this basis, are therefore denied.
B. Failure to state a
§ 1983, NJCRA, or NJLAD claim
The four defendants’ also assert, in the alternative, that the federal
constitutional claims against them under 42 U.S.C.
§ 1983, as well as the State
constitutional claims under the New Jersey Civil Rights Act (“NJCRA”), must be
dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. In
essence, they state that they cannot be liable for any constitutional violation
because they are private parties, not state actors. Likewise, they argue that
they cannot be liable for any violation of the New Jersey Law Against
Discrimination (“NJLAD”).
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There is no need to belabor the point. The plaintiff concedes that,
although the relevant counts are titled “as to all defendants,” she “does not
assert constitutional and NJLAD claims against” these four particular
defendants. (ECF no. 40 at 27; ECF no. 49 at 18). The plaintiffs concession
refers explicitly to Counts 10 (“NEW JERSEY CONSTITUTION AND THE NEW
JERSEY CIVIL RIGHTS ACT”) and 11 (“HOSTILE EDUCATIONAL
ENVIRONMENT Violation of New Jersey’s Law Against Discrimination”). Surely
Count 9 (“42 U.S.C.
§ 1983 EQUAL PROTECTION”) was intended as well; at
any rate, it requires state action, and these defendants, college students, were
not affiliated with the state.
ORDER
For the reasons set forth above, and for good cause shown:
IT IS this 14th day of September, 2017,
ORDERED that motion of defendants Jordyn Massood, Christopher
Rainone, and Justin Sommers (ECF no. 26) and the motion of defendant
Skender Agic (ECF no. 31) to dismiss the complaint pursuant to Fed. R. Civ. P.
12(b)(5) for failure to make timely service is DENIED; and it is further
ORDERED that the motion of defendants Jordyn Massood, Christopher
Rainone, and Justin Sommers (ECF no. 26) and the motion of defendant
Skender Agic (ECF no. 31) to dismiss the complaint pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim is GRANTED ON CONSENT to the extent
that Counts 9, 10, and 11 are dismissed as against these four defendants only.
iiVINMNULTY,.D.J.
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