The opinion of the court was delivered by: JOSEPH IRENAS, District Judge
The instant action arises the termination of Plaintiff
Genevieve Cunningham's employment as a prison-based infectious
diseases counselor after the New Jersey Department of Corrections
revoked her security clearance permitting her access to state
correctional facilities. Presently before the Court is the Second
Motion to Dismiss by Defendant Correctional Medical Services
Plaintiff filed a Complaint against the State of New Jersey,
the New Jersey Department of Corrections, Devon Brown, Charles
Leone, Donna Klepper (collectively "State Defendants"), CMS, and
several fictitious defendants on October 21, 2003. Plaintiff
alleged various federal and state constitutional and statutory
violations arising from the termination of her employment with
the South Jersey AIDS Alliance, an organization contracted by the
New Jersey Department of Health and the New Jersey Department of
Corrections to provide infectious disease counseling services in
state correctional facilities.
Plaintiff was initially represented by Bernard J. McBride, Esq.
Mr. McBride instituted the lawsuit and served the State
Defendants at some point in December, 2003.*fn1 (Cohen
Cert., Ex. A) Mr. McBride became incapacitated due to unspecified
medical and personal problems not long after the State Defendants
were served, and subsequently abandoned his legal
practice.*fn2 Plaintiff tried repeatedly and unsuccessfully
to contact Mr. McBride.
Plaintiff eventually sought replacement counsel, and contacted Barry Cohen, Esq., in May, 2004. Mr. Cohen agreed to
represent Plaintiff. He made multiple unsuccessful attempts to
contact Mr. McBride in order to obtain Plaintiff's file.
Plaintiff also sent a letter to Mr. McBride on June 5, 2004,
terminating his services and asking him to transfer her file to
Mr. Cohen. (Cohen Cert., Ex. E) Mr. McBride did not respond to
Plaintiff's letter or Mr. Cohen's correspondence.
Mr. Cohen also contacted the Attorney General's office and
Magistrate Judge Ann Marie Donio regarding the situation with Mr.
McBride. Mr. Cohen informed the Court that Plaintiff was unaware
of the status of her case due to Mr. McBride's failure to respond
to any communications, including whether CMS had been served or
had filed any responsive pleadings. (Cohen Cert., Ex. D)
Mr. Cohen participated in a June 8, 2004, scheduling conference
on Plaintiff's behalf, after learning of the conference from the
Attorney General's office. Following the conference, Mr. Cohen
sent a substitution of attorney form to Mr. McBride. Mr. McBride
did not respond to Mr. Cohen's request or any further attempts at
On October 1, 2004, Mr. Cohen and the Attorney General received
a letter from William F. Zeigler, Esq., who had been appointed by
the Superior Court to serve as Attorney Trustee over the files of
Mr. McBride due to Mr. McBride's "temporary inability to practice law due to medical reasons."*fn3
(Cohen Cert., Ex. I) Mr. Zeigler asked Mr. Cohen to contact him
to arrange for the transfer of Plaintiff's file. (Id.) Mr. Cohen
replied and the file was sent to him on October 25, 2004. (Cohen
Cert., Ex. J) On November 3, 2004, Mr. Cohen was officially
substituted as Plaintiff's attorney.
Magistrate Judge Donio issued a Management Order on November 8,
2005, ordering Plaintiff to serve CMS within ten days. (Docket
No. 10) A summons was issued for CMS on November 9, 2004. CMS was
served on November 16, 2004.
On January 3, 2005, CMS filed its first Motion to Dismiss on
several grounds, including that service was untimely.*fn4
Plaintiff filed an Amended Complaint on March 24, 2005. CMS filed
a Second Motion to Dismiss on April 6, 2005, solely on the ground
that service was untimely because CMS was not served within the
120-day period required by Fed.R.Civ.P. 4(m).
CMS filed its Second Motion to Dismiss pursuant to
Fed.R.Civ.P. 12(b)(5), which authorizes a district court to dismiss a case if service of process was insufficient. The party
responsible for effecting service has the burden of demonstrating
the validity of service. Grand Entm't Group v. Star Media
Sales, 988 F.2d 476, 488 (3d Cir. 1993); Suegart v. United
States Customs Service, 180 F.R.D. 276, 278 (E.D. Pa. 1998).
Rule 4(m) sets out the period of time in which a defendant must
be served with a summons and a copy of the complaint. The rule
If the service of the summons and complaint is not
made upon a defendant within 120 days after the
filing of the complaint, the court, upon motion or on
its own initiative after notice to the plaintiff,
shall dismiss the action without prejudice as to that
defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend
the time for service for an appropriate period.
The Third Circuit has held that when entertaining a motion
challenging service of process under Rule 4(m), a district court
must first determine if good cause exists for an extension of
time for service. Petrucelli v. Bohringer and Ratzinger, GMBH,
46 F.3d 1298, 1305 (3d Cir. 1995). If the plaintiff can
demonstrate good cause, the district court must extend the time
period for service of process. Id. If no good cause exists,