ADLY v. RENZENBERGER, INC. et al
Filing
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OPINION. Signed by Judge Katharine S. Hayden on 10/16/2018. (sm)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL ADLY,
Civil No.: 17-cv-9012 (KSH) (CLW)
Plaintiff,
v.
RENZENBERGER, INC., GREG STOAB,
OPINION
Defendants.
Katharine S. Hayden, U.S.D.J.
Plaintiff Michael Adly, who was employed for thirteen years as a driver for
Renzenberger, Inc., alleges he was fired on October 18, 2016, after he was involved in a traffic
accident. (D.E. 1, Complaint [“Compl.”], ¶¶ 11-12, 14-16.) He alleges that although the
accident was the “official” reason given for his termination, three months earlier, in July 2016,
his then-manager, Greg Stoab (with Renzenberger, “defendants”) had accused him of being
unable to speak English and told him to “Learn English!” (Id. ¶¶ 16, 13.) He claims that other
employees who do not speak with an accent and who were involved in motor vehicle accidents
were not terminated, and that the company did not follow the corrective action policy in its
employee handbook. (E.g., id. ¶¶ 17, 19-23.)
Based on these events, on October 23, 2017, Adly filed a five-count complaint against
defendants, asserting claims for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq., and the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-12,
and for breach of implied contract. (See generally Compl.) Adly asserts, in substance, that he
experienced unlawful discrimination because he is of Egyptian descent and Muslim faith.
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The day after Adly filed his complaint, the Court issued a summons to be completed and
used in the service of process on defendants. (D.E. 2.) The Court also issued a quality control
message advising Adly’s attorney to update his account because the address on the complaint did
not match the Court’s records. No proof of service was ever filed, and the docket for this action
still reflects an apparently incorrect address for Adly’s attorney. In fact, there was no further
docket activity until the Court issued a notice of call for dismissal on January 22, 2018, putting
Adly on notice that his action would be dismissed on January 29, 2018, for failure to effect
service of process within 90 days of the filing of his complaint, unless proof of timely service
was filed before the return date. (D.E. 3.) Adly’s attorney was also directed to serve the notice
of call for dismissal upon his client and to provide proof of that service to the Court. (Id.)
Neither proof of service of the summons and complaint upon defendants nor proof of service of
the notice was filed and, on January 30, 2018, the Court dismissed the action pursuant to Fed. R.
Civ. P. 4(m), for failure to effect timely service. (D.E. 4.)
More than two and a half months later, on April 16, 2018, Adly filed a motion, which is
unopposed, seeking to reinstate the complaint. (D.E. 5.) The motion, which fails to identify the
governing rule or other legal authority under which Adly is moving, was supported by a twopage certification from Ihab A. Ibrahim, Esq., claiming that the complaint was filed by an
associate of his office who at some point left the firm;1 that “service on the Defendant was
assumed and as a result was overlooked”; that the Court had dismissed the action on January 30,
2018, for failure to effect service; and that “the service issue” “did not occur to us . . . until this
time.” (D.E. 5-3 ¶¶ 4-8.) The certification is silent as to whether any effort was ever made to
effectuate service of process upon defendants, much less whether any effort was made within the
1
The Court observes that Mr. Ibrahim – not his former associate – is the attorney who signed the
complaint.
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90-day period required by Fed. R. Civ. P. 4(m). To the contrary, the proposed order
accompanying Adly’s motion phrases the relief sought as reinstatement of the complaint and to
“allow Plaintiff to serve Defendants” [D.E. 5-1], suggesting that Adly never did effectuate
service of the summons and complaint.
Because service of process is a prerequisite to the Court exercising jurisdiction over
defendants, and therefore a prerequisite to this action proceeding, the Court will construe Adly’s
motion as a request for extension of time to effectuate service of the summons and complaint.
Under Rule 4(m),2 the court must dismiss an action without prejudice if the plaintiff has not
served the summons and complaint within 90 days after filing the complaint. Fed. R. Civ. P.
4(m). If the plaintiff demonstrates good cause for its failure to timely serve process, the court
must extend the time to do so “for an appropriate period.” Id. If the plaintiff fails to demonstrate
good cause, it is within the Court’s discretion to either grant an extension of time for service or
dismiss the complaint without prejudice. Veal v. United States, 84 F. App’x 253, 256 (3d Cir.
2004) (citing Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995)). Thus,
even absent a showing of good cause, the Court must consider whether any other factors justify
an extension of time. Id. (citing Petrucelli, 46 F.3d at 1307).
Adly has failed to demonstrate good cause for his failure to effectuate timely service
upon defendants. The Third Circuit equates “good cause” with the concept of “excusable
neglect,” which requires the plaintiff to demonstrate good faith and a reasonable basis for failing
2
Under the circumstances, Rule 4(m), and not Rule 60(b), supplies the proper framework for
considering Adly’s motion, as Rule 60(b), by its terms, applies only to final judgments. The
Court’s January 30 order of dismissal without prejudice is not yet a final judgment because,
based on the allegations in the complaint, and as discussed further infra, at least one of Adly’s
claims appears not to be time-barred. See Core Commc’ns, Inc. v. Verizon Pa., Inc., 493 F.3d
333, 337 (3d Cir. 2007) (“Ordinarily, an order dismissing a complaint without prejudice is not a
final order unless the applicable statute of limitations would not permit the re-filing of the
claims.”).
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to comply with the time limit in the rule. MCI Telecommc’ns Corp. v. Teleconcepts, Inc., 71
F.3d 1086, 1097 (3d Cir. 1995). Appropriate considerations include the reasonableness of
plaintiff’s efforts at service, prejudice to the defendant, and whether plaintiff sought an
extension, but the “primary focus” of the inquiry is on “the plaintiff’s reasons for not complying
with the time limit in the first place.” Id.; see also Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir.
1997). “[H]alf-hearted efforts, inadvertence, or a lack of due diligence by counsel are not
excusable neglect.” Wahab v. N.J.D.E.P., 2017 U.S. Dist. LEXIS 175545, at *15 (D.N.J. Oct.
24, 2017) (Martinotti, J.). The facts certified to by Adly’s counsel demonstrate that this is
exactly what happened: counsel simply “assumed” that service had been made by another
attorney in the office, without ever confirming that was so, and it did not “occur” to counsel to
effectuate service until more than two months after the case had been dismissed for failure to do
so. (D.E. 5-3, ¶¶ 5-6, 8.) The motion offers no other explanation for failing to timely serve
defendants (or, in fact, to serve them at all). This, of course, falls well short of the “good cause”
standard.
Nonetheless, the Court will exercise its discretion to extend Adly’s time to effectuate
service. Running of the statute of limitations – such that the action, if dismissed for failure to
effectuate timely service, could not be refiled because it would be time-barred – is “a factor
supporting the discretionary granting of an extension of time to make service under Rule 4(m).”
Boley, 123 F.3d at 759 (emphasis omitted). At least one of Adly’s claims appears to be
approaching the end of the limitations period: count two of the complaint, which asserts a claim
for wrongful termination under the NJLAD, is subject to a two-year statute of limitations that
began running upon Adly’s October 18, 2016 discharge. See Alexander v. Seton Hall Univ., 204
N.J. 219, 228 (2010). Denial of Adly’s motion under the circumstances would therefore require
him to immediately refile his complaint to avoid this claim being time-barred, and service upon
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defendants would still be required (with a new 90-day service period). In other words, if Adly
acted to preserve this claim, he would immediately place this case in effectively the same
procedural posture, without having advanced the ball nearly a year after the complaint was
originally filed. To avoid this inefficient outcome, or, alternatively, Adly’s forfeiture of this
claim, the Court will permit the reopening of this action.3
Finally, the Court advised Mr. Ibrahim on October 24, 2017, nearly a year ago, that the
address on the complaint he signed did not match the Court’s records for him. The docket still
reflects an address for Mr. Ibrahim that does not match the address on the complaint. Local Civil
Rule 10.1(a) requires counsel to provide the Court with notice of a change of address within
seven days after becoming aware of the change; failure to do so may result in the imposition of
sanctions. Mr. Ibrahim has had ample time to update his address in the Court’s records, and is
hereby directed to do so within five days.
Adly’s motion to reinstate the complaint is GRANTED. Adly must effectuate service of the
summons and complaint upon both defendants within 15 days of the date of the entry of this
decision and shall promptly thereafter file proof of service. Mr. Ibrahim is directed to update his
address with the Court within five days of the date of entry of this decision. An appropriate order
will follow.
/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.
Date: October 16, 2018
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In so doing, however, the Court is not making a factual finding that this or any other of Adly’s
claims are, in fact, timely.
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