United States District Court, D. New Jersey
September 12, 2005.
GENEVIEVE CUNNINGHAM, Plaintiff,
STATE OF NEW JERSEY, et al., Defendants.
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,
"the court may in its discretion decide whether to dismiss the
case without prejudice or extend time for service." Id. III.
In determining whether there is good cause for the extension of
the time for service under Rule 4(m), district courts should
consider: "(1) reasonableness of plaintiff's efforts to serve (2)
prejudice to the defendant by lack of timely service and (3)
whether plaintiff moved for an enlargement of time to serve."
MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097
(3d Cir. 1995) (citing United States v. Nuttall,
122 F.R.D. 163, 1666-7 (D. Del. 1988)); see also Spencer v. Steinman,
968 F. Supp. 1011, 1014-15 (E.D. Pa. 1997). After consideration of
each of the above factors, the Court concludes that Plaintiff has
shown good cause for her failure to serve CMS within the 120-day
period required by Rule 4(m).
The inadvertence or lack of diligence of counsel are generally
insufficient to establish good cause for the extension of the
time period for service of process. See Petrucelli,
46 F.3d at 1307. This case, however, falls outside the realm of mere
inadvertence. Mr. McBride abandoned his representation of
Plaintiff very early on in the prosecution of her Complaint. The
record reveals that he did not communicate with his client,
opposing counsel or the Court for almost a year before Mr. Cohen
was officially substituted as Plaintiff's counsel. The situation
was so grave that the Superior Court felt it necessary to assign
control over Mr. McBride's legal practice to a trustee. By contrast, Plaintiff's efforts to pursue the prosecution of
her case were diligent and reasonable. She was compelled by Mr.
McBride's lack of communication and deficient performance to seek
new counsel. Plaintiff individually and through Mr. Cohen made
many unsuccessful attempts to contact Mr. McBride to determine
the status of her case and to acquire her case file. She has kept
the Court informed of the situation and sought to remedy it by
seeking new counsel. Upon receiving her case file from the
Attorney Trustee, she promptly served CMS.
With regard to the second factor, CMS has not alleged that it
was prejudiced by the delayed service of process, much less
presented any evidence to that effect. The fact that CMS would
have to defend against a lawsuit that would otherwise be
dismissed is not sufficient by itself to establish
prejudice.*fn5 "[P]rejudice `involves impairment of
defendant's ability to defend on the merits, rather than
foregoing such a procedural or technical advantage.'" Boley v.
Kaymark, 123 F.3d 756, 759 (3d Cir. 1997) (citation omitted).
Plaintiff never filed a motion to extend the time for service,
although such a failure to file such a motion is not by itself
fatal to her position. See Nuttall, 122 F.R.D. at 167. L. Civ. R. 11.1 mandates that the attorney of record personally
sign all papers submitted to the Court or filed with the Clerk.
Until Mr. Cohen was formally substituted as her counsel on
November 3, 2004, any motions on Plaintiff's behalf required the
signature of Mr. McBride, her attorney of record. Given Mr.
McBride's failure to respond to any communication from Plaintiff,
it is highly unlikely she could have procured his signature on a
motion to extend the time for service.*fn6
The District of Delaware noted in Nuttall that "the third
good cause factor is simply a subset of the first factor, which
considers the diligence and reasonableness of plaintiff's
efforts." Id. As in that case, this Court concludes that
despite her failure to file a motion to extend the time for
service, Plaintiff acted in a fashion that was "eminently
reasonable and diligent." Id.
Having found that good cause is present under Rule 4(m), the
Court will extend the time for service of the original Complaint
until November 16, 2004, the date when service of the original
Complaint was made on CMS. IV.
For the reasons set forth above, the Court will dismiss as moot
Defendant CMS's First Motion to Dismiss and deny the Second
Motion to Dismiss. The Court will enter an appropriate order.
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