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Law v. Schonbraun McCann Group

October 16, 2009

FENECIA LAW
v.
SCHONBRAUN MCCANN GROUP, LLC



The opinion of the court was delivered by: William J. Martini Judge

LETTER OPINION

Dear Litigants:

This matter comes before the Court on Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5).*fn1 Oral arguments were not held, in accordance with Fed. R. Civ. P. R. 78. For the reasons set forth below, Defendant's motion is GRANTED.

I. BACKGROUND

Plaintiff Fenecia Law ("Law") filed a Complaint in federal court on June 16, 2008, alleging that her former employer, the Schonbraun McCann Group, LLC ("Schonbraun") had impermissibly discriminated against her for reasons related to her age, sex, and race. Pl.'s Cmplt. ¶ 2. At the time of filing, Plaintiff was a 44 year old African-American woman. Id. at 7. Specifically, the Complaint alleges that Defendant paid higher salaries and gave greater consideration to Plaintiff's younger, white, and male co-workers than to Plaintiff, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) as amended by the Civil Rights Act of 1991 at 42 U.S.C. § 1981(a), and the New Jersey Law Against Discrimination N.J.S.A.10:5.1. Id. at 2, 14, 17, 20, 22. Plaintiff was represented by attorney Dawn L. Jackson ("Jackson") at the beginning stages of the litigation. Pl.'s Cmplt.

On August 20, 2008, Plaintiff submitted an incomplete summons to the Court. CM/ECF Docket Entry No. 2. Because it was incomplete, the Court did not issue the summons. Plaintiff submitted a second summons on November 20, 2008 and subsequently served it upon Defendant. The second summons was complete on its face so it was issued by the Court. Id. at Entry No. 3. However, it was issued more than 120 days after the June 16, 2008 filing of the Complaint.

Defendant answered Plaintiff's Complaint on December 2, 2008. Id. at Entry No. 4. On December 24, 2008, Defendant moved to dismiss the Complaint for insufficient service of process, on the grounds that Defendant was not served within 120 days of the filing of the Complaint as required by Fed. R. Civ. P. 4(c) and (m). Id. at Entry No. 8.

Plaintiff's opposition papers were due January 6, 2009, but Jackson requested and was granted a one cycle adjournment. Id. at Entry No. 9. The opposition became due January 20, 2009, but Jackson did not file any papers at that time. The Court has not received any further correspondence from Jackson.

On March 18, 2009, the New Jersey Supreme Court temporarily suspended Jackson from the practice of law. Id. at Entry Nos. 10, 13. On April 1, 2009, Plaintiff notified the Court of Jackson's suspension and requested time to find a new attorney. Id. at Entry No. 10. The Court granted her 30 days to do so and represented that it would delay any ruling on the pending motion until after the 30 day period. Id. at Entry No. 11. Plaintiff also informed the Court that in between January and March 2009, Jackson had not responded to any letters or calls from Plaintiff and had in essence ceased her representation of Plaintiff.

During the 30 day period, Plaintiff failed to find new counsel. She alleges that this was because Jackson did not return her retainer fee, leaving Plaintiff unable to afford a new attorney. Plaintiff contacted the Court again on May 22, 2009, requesting to represent herself. Id. at Entry No. 12. By Order dated June 11, 2009, the Court granted Plaintiff's request and gave Plaintiff until June 24, 2009 to respond to the motion to dismiss as a pro se litigant. Id. at Entry No. 13.

Plaintiff submitted a document on June 24, 2009 purporting to be an opposition brief. Id. at Entry No. 14. The Court will treat the document as such. However, it does not contain any substantive arguments opposing the motion or give any reasons for the delay in service of process. Several days after submitting the brief, Plaintiff contacted chambers, said she had misunderstood the purpose of the opposition brief, and requested additional time. However, in accordance with the June 11, 2009 Order, the Court declined to grant her any more extensions.

Plaintiff contacted the Court again in July and August 2009, to say that she was close to retaining or had retained new counsel. However, to date, no new attorney has filed a notice of appearance with the court or otherwise purported to represent Plaintiff. Therefore, the Court will continue to deem her a pro se litigant. Presently before the Court is Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process.

II. ANALYSIS

Federal Rule of Civil Procedure 12(b)(5) permits a court to dismiss a case for "insufficiency of service of process." Fed. R. Civ. P. 12(b)(5). "The party asserting the validity of service bears the burden of proof on that issue." Grand Entm't Group v. Star Media Sales, 988 F.2d 476, 488 (3d Cir. 1993). According to Fed. R. Civ. P. 4(c) and 4(m), a plaintiff must serve the defendant with a valid Summons and copy of the Complaint within 120 days of the initial filing of the Complaint. If a defendant is not served within 120 days, the court "must dismiss the action without prejudice against that defendant or order that service be made within a ...


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