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Re: Doe v. Sizewise Rentals

January 14, 2011

RE: DOE
v.
SIZEWISE RENTALS, LLC, ET AL.



The opinion of the court was delivered by: Jose L. Linares Jose L. Linares United States District Judge

C H AM B ER S O F M A R TIN L U T HE R K IN G JR. JOSE L. LINARES FE D E R A L B U IL D IN G & U.S. C OU R T H O USE JU DG E 50 W A L N U T ST ., R O O M 5054 P.O . B ox 999 Newark, NJ 07101-0999 973-645-6042

NOT FOR PUBLICATION

LETTER OPINION

Dear Parties:

This matter comes before the Court by way of Plaintiff's motion to vacate this Court's November 22, 2010 Opinion and Order. The Court construes Plaintiff's application as a motion for reconsideration pursuant to Local Civil Rule 7.1(i). The Court has considered the submissions made in support of and in opposition to the instant motion. No oral argument was heard. Fed. R. Civ. P. 78. Based on the reasons that follow, Plaintiff's motion is denied.

BACKGROUND AND STANDARD

As the Court writes only for the parties, a familiarity with the underlying factual and procedural background of this case will be assumed and will not be repeated here except where necessary to provide proper context for the pending motion. By way of Opinion and Order dated November 22, 2010, the Court engaged in a detailed analysis of Plaintiffs' claims and set forth, also with much detail, its reasons for dismissing each of Plaintiffs' claims with the exception of Plaintiff John Doe's section 1981 claim of retaliation as against defendants Sizewise and Joyce Sklar. In doing so, the Court made every effort to liberally construe the factual allegations contained in Plaintiffs' Second and Third Amended Complaints, despite the fact that the Second Amended Complaint is no longer the operative complaint in this matter.

Plaintiffs' have now filed a motion for reconsideration of this Court's November 22, 2010 Opinion and Order. "Reconsideration is an extraordinary remedy" and should be "granted 'very sparingly.'" See L.Civ.R. 7.1(I) cmt.6(d); see also Fellenz v. Lombard Investment Corp., Nos. 04-3993, 04-5768, 04-3992, 04-6105, 2005 WL 3104145, at *1 (D.N.J. Oct. 18, 2005). A party seeking reconsideration shall file and serve its motion within fourteen days after the entry of the order on the original motion. L. Civ. R. 7.1(I). A motion for reconsideration must "set[] forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked." Id. When the assertion is that the Court overlooked something, the Court must have overlooked "some dispositive factual or legal matter that was presented to it." McGovern v. City of Jersey, No. 98-5186, 2008 WL 58820, at *2 (D.N.J. Jan. 2, 2008).

Nowhere in Plaintiffs' moving or reply briefs do Plaintiffs point to any dispositive factual or legal matter which was presented to but overlooked by this Court. For purposes of clarity, the Court will, in any event, go through each of the legal and/or factual matters that Plaintiffs' maintain the Court overlooked in rendering its decision.

1. Service of Process on Out of State Defendants

First, Plaintiffs take issue with the Court's statement that there is no indication on the docket that the Third Amended Complaint has been properly served on certain out-of-state defendants. In its November 11, 2010 Opinion, the Court noted the following:

The Third Amended Complaint also includes certain allegations concerning proposed Defendants Trever Frickey, Tim McCarty, Steve Aten, Chris Tanner, Scott Tweeddale, Larry Askew, Nancy Gutharie and Christine Unrein. Included in the motion to dismiss filed by the Sizewise Defendants are arguments concerning this Court's lack of personal jurisdiction over these individuals. There is no indication on the docket, however, that the Third Amended Complaint has been properly served on the foregoing individuals. Therefore, at this juncture, Trever Frickey, Tim McCarty, Steve Aten, Chris Tanner, Scott Tweeddale, Larry Askew, Nancy Gutharie and Christine Unrein are not parties to this action. Accordingly, the Court declines to consider allegations lodged against these defendants (and arguments seeking dismissal of claims asserted against them) at this time. Moreover, the Court notes that pursuant to Federal Rule of Civil Procedure 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time." This is not the first time that Plaintiffs have been placed on notice of their failure to properly effectuate service of process on these defendants. See Docket Entry Nos. 25 (Court notice dated December 7, 2009), 43 (Court Order dated December 21, 2009), 78 (Court Opinion dated September 7, 2010 at 2). Once again, Plaintiffs are hereby placed on notice that service of process of the Third Amended Complaint must comply with all of the requirements of the Federal Rules of Civil Procedure, including but not limited to Rule 4. Plaintiffs are hereby advised that their failure to comply with all such requirements will result in dismissal of this action as to the foregoing defendants without further notice.

(November 22, 2010 Opinion). Plaintiffs maintain that this Court erred in making this statement by overlooking documents contained under Docket Entry No. 85. Docket Entry No. 85 contains a return receipt card indicating that a copy of the Third Amended Complaint was delivered via certified mail to the "Legal Department" at Sizewise Rentals, LLC. However, the individual defendants listed above have all been sued in their individual capacities. Federal Rule of Civil Procedure 4(e) provides the following:

Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served in a ...


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