GERHART et al v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 9

ORDER THAT DEFENDANTS' MOTION TO DISMISS IS GRANTED IN PART AND DENIED IN PART. SIGNED BY HONORABLE THOMAS M. GOLDEN ON 8/13/09. 8/19/09 ENTERED AND COPIES E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA STANLEY GERHART, et al. Plaintiffs vs. COMMONWEALTH OF PENNSYLVANIA, et al. : : : : : : : : : : :

CIVIL ACTION

NO. 09-cv-1145

Defendants

ORDER AND NOW, this 13th day of August, 2009, upon consideration of Defendants Commonwealth of Pennsylvania, Pennsylvania State Police, and State Trooper Maurice Minnifield's ("Defendants") Motion to Dismiss, Plaintiffs' response thereto (Doc. No. 4), Plaintiffs' Response to the Court's Rule to Show Cause (Doc. No. 5), Defendants' Response to Plaintiffs' Response to the Court's Rule to Show Cause (Doc. No. 6), and Defendants' Notice of Recent Decision (Doc. No. 7), it is ORDERED that Defendants' Motion (Doc. No. 2) is GRANTED in part and DENIED in part. IT IS ORDERED as follows: 1. Plaintiffs' constitutional claims in Counts Two, Three, and Four against Defendant State Troopers Maurice Minnifield and John Doe in their official capacities, actionable here under 42 U.S.C. § 1983, are DISMISSED WITH PREJUDICE. Plaintiffs' claims in Counts Two, Three, and Four against Defendant State Troopers Maurice Minnifield and John Doe in their individual capacities, actionable here under 42 U.S.C. § 1983, remain; 2. Plaintiffs' claims in Counts Three and Four against Defendant State Troopers Maurice Minnifield and John Doe in their individual capacities for violations of the Fifth Amendment and conspiracy to violate Plaintiffs' Fifth Amendment rights respectively,

each actionable here under 42 U.S.C. § 1983, are DISMISSED WITH PREJUDICE. Plaintiffs' claims in Counts Three and Four against Defendant State Troopers Maurice Minnifield and John Doe in their individual capacities for violations of the Fourteenth Amendment and conspiracy to violate Plaintiffs' Fourteenth Amendment rights, each actionable here under 42 U.S.C. § 1983, remain. 3. Plaintiffs' claim in Count Four that Defendant State Troopers Maurice Minnifield and John Doe in their individual capacities conspired, along with Defendant Inez Rogers, to violate the constitutional rights of Plaintiffs, actionable here under 42 U.S.C. § 1985, is DISMISSED WITHOUT PREJUDICE. Plaintiffs' claim in Count Four that Defendant State Troopers Maurice Minnifield and John Doe in their individual capacities conspired, along with Defendant Inez Rogers, to violate the constitutional rights of Plaintiffs, actionable here under 42 U.S.C. § 1983, remains; 4. Count One, which asserts a private cause of action for monetary damages for alleged violations of Article 1, Section 8 of the Pennsylvania Constitution, is DISMISSED WITH PREJUDICE; 5. To the extent Defendants seek dismissal of Counts Five, Six, and Seven on the basis of sovereign immunity, Defendants' request is DENIED; and 6. Counts Eight and Nine are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs shall file and serve on all parties an Amended Complaint consistent with this Order and accompanying Memorandum Opinion within thirty (30) days of the date of this Order. If Defendant Inez Rogers--who had not been served as of June 11, 2009--is not properly served within thirty (30) days of the date of this Order, all claims against

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Defendant Rogers may be dismissed. See Fed. R. Civ. P. 4(m).1 Defendants Maurice Minnifield and John Doe shall file a responsive pleading to Plaintiffs' Amended Complaint within twenty (20) days of being served with the Amended Complaint. BY THE COURT:

/s/ Thomas M. Golden THOMAS M. GOLDEN, J.

"Rule 4(m) governs cases originally filed in federal courts, and applies to removed cases after the date of r e m o v a l." Grendysa v. Evesham Twp. Bd. of Educ., No. 02-1493, 2005 W L 2416983, at *17 (D.N.J. Sept. 27, 2 0 0 5 ) ; accord Fed. R. Civ. P. 81(c); Alber v. Ill. Dep't of Mental Health and Developmental Disabilities, 786 F. S u p p . 1340, 1376 (N.D. Ill. 1992). Thus, Rule 4(m)'s 120-day period for service begins to run on the date of r e m o v a l. Grendysa, 2005 W L 2416983, at *17. This action was removed to federal court on March 16, 2009, (Doc. N o . 1), thereby leading to a service deadline of July 14, 2009. As of June 11, 2009, Defendant Inez Rogers had not b e e n served in this civil action, (Doc. No. 4-2 at 1), and the docket does not reflect service as of the date of this O rd e r. Assuming that service on Rogers has not timely occurred, Plaintiffs' failure to comply with this Order's 30d a y service deadline, without good cause shown, may lead to dismissal of all claims against Rogers. See Petrucelli v . Bohringer & Ratzinger, 46 F.3d 1298, 1305-06 (3d Cir. 1995) (explaining that Rule 4(m) requires "a court to e x te n d time if good cause is shown" and allows "a court discretion to dismiss or extend time absent a showing of g o o d cause"; noting that, "absent a finding of good cause, a district court may in its discretion still dismiss the case, e v e n after considering that the statute of limitations has run and the refiling of an action is barred"); Chiang v. U.S. S m a ll Bus. Admin., No. 07-2686, 2009 W L 1178505, at *1-3 (3d Cir. May 04, 2009) (affirming dismissal of action f o r failure to timely serve where district court found no good cause to extend time for service even though the statute o f limitations had expired and plaintiffs were barred from litigating their case).

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