DUNBAR et al v. NATIONAL RAILROAD PASSENGER CORPORATION et al

Filing 76

OPINION filed. Signed by Judge Mary L. Cooper on 6/10/2013. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JERMAINE DUNBAR, et al.,

CIVIL ACTION NO. 10-3924 (MLC)
O P I N I O N

Plaintiffs,
v.
NATIONAL RAILROAD PASSENGER CORP.
d/b/a AMTRAK, et al.,
Defendants.
COOPER, District Judge

The plaintiffs have brought the action against, inter alia,
the defendants NBK Holdings LLC (“NBK”), Willow No Inc. (“Willow”),
the so-called “Amtrak Defendants” -- i.e., National Railroad
Passenger Corp. d/b/a Amtrak and Frederick D. Hill -- and the
fictitious defendants, “John Does 1-40” and “ABC Corp.
1-20 and 22-30”.

1

(See dkt. entry no. 35, 2d Am. Compl.)1

The action, insofar as it was brought against the other
defendants, was earlier dismissed without prejudice. (See dkt.
entry no. 47, 10-13-11 Order (dismissing the action insofar as it
was brought against Angelo Pacillo, Mary Pacillo, and the entity
pleaded as Joyce Kilmer Associates, LLC); dkt. entry no. 61, 9-2612 Stipulation of Dismissal (dismissing the action insofar as it
was brought against H&G Contractors Incorporated); dkt. entry no.
63, 11-28-12 Stipulation of Dismissal (dismissing the action
insofar as it was brought against Charles W. Amos); dkt. entry no.
68, 3-6-13 Stipulation of Dismissal (dismissing the action insofar
as it was brought against the County of Middlesex); dkt. entry no.
71, 3-22-13 Stipulation of Dismissal (dismissing the action insofar
as it was brought against the Township of New Brunswick); dkt.
entry no. 73, 4-12-13 Order (dismissing the action insofar as it
was brought against the State of New Jersey).)

I.

NBK AND WILLOW
A.

Federal Rule of Civil Procedure 4(m)

The Second Amended Complaint was filed on May 26, 2011.
2d Am. Compl.)

(See

It was not accompanied by a certificate of service,

and no certificate of service was later filed.

The plaintiffs have

thus prevented the Court from ascertaining whether the Second
Amended Complaint was served on NBK and Willow.2
“If a defendant is not served within 120 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.”

Fed.R.Civ.P. 4(m).

Thus, the Court will

dismiss the Second Amended Complaint insofar as it is asserted
against NBK and Willow unless the plaintiffs establish that service
has been effected upon them.

See Demos v. President of U.S., 365

Fed.Appx. 341, 342 (3d Cir. 2010); Sykes v. Blockbuster Video, 205
Fed.Appx. 961, 963-64 (3d Cir. 2006); Liu v. Oriental Buffet, 134
Fed.Appx. 544, 546 (3d Cir. 2005).
B.

Local Civil Rule 41.1(a)

It appears from the Court’s sua sponte review of the docket
that the action has been pending, insofar as it was brought against
2

It appears, by contrast, that the Second Amended Complaint
was served on the Amtrak Defendants. The Amtrak Defendants have
answered the Second Amended Complaint. (See dkt. entry no. 39,
Amtrak Defs.’ Answer & Crossclaims.)
2

both NBK and Willow, for more than 120 days without the plaintiffs
having prosecuted the action.

The plaintiffs have not, through the

documents already appearing on the docket, explained the apparent
lack of prosecution.
The Court will thus dismiss the Second Amended Complaint
insofar as it was brought against both NBK and Willow unless the
plaintiffs take steps to prosecute the action against NBK and
Willow.

See L.Civ.R. 41.1(a); see also Fed.R.Civ.P. 41(b).

The

Court is authorized to impose harsh penalties when enforcing the
Local Civil Rules.

See Kabacinski v. Bostrom Seating, 98 Fed.Appx.

78, 82 n.3 (3d Cir. 2004); see also McCann v. Unum Provident, No.
11-3241, 2013 WL 396182, at *3 (D.N.J. Jan. 31, 2013) (citation
omitted) (“Given the vital purpose that such rules serve, litigants
ignore them at their peril.”).3
C.

The Plaintiffs’ Response

The plaintiffs, if intending to proceed against NBK and
Willow, must directly respond to this Order by electronically
filing a separate letter or brief on the docket.

The plaintiffs

may not merely file proof of service upon NBK and Willow, as that
will not be tantamount to compliance with this Opinion, the Federal
Rules of Civil Procedure, or the Local Civil Rules.

The Court will, if necessary, balance the Poulis factors.
See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d
Cir. 1984).
3

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II.

THE FICTITIOUS DEFENDANTS
The parties were earlier ordered to complete fact discovery in

the action by August 15, 2012.
Order.)

(See dkt. entry no. 56, 6-7-12

That deadline passed nearly ten months ago.

Nonetheless,

the plaintiffs have failed to name the Fictitious Defendants.
“The case law is clear that fictitious defendants must
eventually be dismissed, if discovery yields no identities.”
Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998) (citation omitted)
(internal quotation marks omitted); see also Sheetz v. Morning
Call, Inc., 747 F.Supp. 1515, 1534-35 (E.D. Pa. 1990), aff’d on
other grounds, 946 F.2d 202 (3d Cir. 1991).

Because the plaintiffs

have failed to name the Fictitious Defendants, the Court will
dismiss those defendants from the action.
III. CONCLUSION
The Court, for good cause appearing: (1) will dismiss the
Fictitious Defendants from the action; and (2) intends to dismiss
the Second Amended Complaint insofar as it is asserted against NBK
and Willow unless good cause is otherwise shown.

The Court will

enter a separate Order and Judgment.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:

June 10, 2013

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