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Green v. County of Gloucester

December 17, 2007

DANIELLE GREEN, PLAINTIFF,
v.
COUNTY OF GLOUCESTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

HON. JEROME B. SIMANDLE

OPINION

This matter comes before the Court on the motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) by Defendants County of Gloucester, Gloucester County Board of Chosen Freeholders, Gloucester County Department of Correctional Services, Gloucester County Sheriff's Department, John Tevoli, W. Stanley Nunn, Frank J. DeMarco, and Robert Balicki ("the County Defendants") and Defendant Prison Health Services, Inc., for Plaintiff's failure to timely serve process on them within the 120 days prescribed by Rule 4(m), Fed. R. Civ. P.*fn1 For the reasons explained below, the Court shall exercise its discretion to grant an extension of time to Plaintiff and deny the motion to dismiss.

I. BACKGROUND

Plaintiff is the wife of Mr. Barry Green, the Plaintiff in Green v. County of Gloucester, et al., Civ. No. 07-413 (JBS), a case currently pending before this Court. Plaintiff alleges that her husband contracted a staph infection, MRSA, while incarcerated at the Gloucester County Correctional Facility and that she, in turn, contracted MRSA from him when he was released in 2004. In her Complaint, she alleges that she began exhibiting symptoms of MRSA infection in March of 2005. (Compl. at ¶ 2.)

Pursuant to the New Jersey Tort Claims Act, Plaintiff filed a notice of tort claim with Gloucester County in April 2005, under her maiden name of Danielle Carter, in which she described her diagnosis with MRSA in March 2005, while pregnant, and the potential mental and physical health ramifications of her infection. She also informed the County that she believed she acquired the infection from her then-boyfriend Barry Green, who had been incarcerated at the Gloucester County Jail in September of 2004. (See generally Ex. B to Pl.'s Opp. to County's Mot.)

Plaintiff filed her Complaint in this matter on March 16, 2007. However, she did not serve Defendants until August 29 and 30, 2007, approximately 170 days after filing her Complaint, or about fifty days beyond the time provided for under Rule 4(m). (See generally Exs. C & D to Pl.'s Opp. to County's Mot.)

On September 14, 2007 Prison Health Services requested and received the Clerk's extension of time to Answer. [Docket Item 2]. On September 18, the County Defendants filed this motion to dismiss [Docket Item 4], in lieu of an answer. Prison Health Services filed its motion on October 1, 2007. Although all Defendants have been properly, although not timely, served, they argue that the Court should dismiss the Complaint for failure to timely serve. Defendants argue that Plaintiff has not shown good cause for her delay and that even though she would be time-barred by the applicable New Jersey statute of limitations from refiling her Complaint, this Court should not exercise its discretion to extend her time for service, pursuant to Rule 4(m).

II. DISCUSSION

Rule 4(m) provides that service of process should be accomplished within 120 days of commencement of a civil action, but it also provides the District Court with authority to extend that time.

If 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.

Fed. R. Civ. P. 4(m). While the rule "explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, [it also] authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown." Fed. R. Civ. P. 4(m) advisory committee's note (1980). Thus, when determining whether to extend time to serve, the district court must (1) first, determine whether good cause exists for an extension of time and, (2) if no good cause exists, determine whether the court should nevertheless exercise its discretion not to dismiss the case.

See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995). Thus, if good cause exists, the Court must grant the extension. Otherwise, the Court may grant or deny the extension, in its discretion.

In this case, the Court finds Plaintiff has not established good cause for her delay in serving Defendants. "In determining whether good cause exist, a court's 'primary focus is on the plaintiff's reasons for not complying with the time limit in the first place.'" Boley v. Kaymark, 123 F.3d 756 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998) (quoting MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir.), cert. denied, 519 U.S. 815 (1995)). In her opposition to these motions ...


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