GABE S. BARRENTINE, Plaintiff,
NEW JERSEY TRANSIT and AMALGAMATED TRANSIT UNION, LOCAL 822, ET AL., Defendants.
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER, Magistrate Judge.
This matter comes before the Court by way of a motion to dismiss for ineffective service of process ("Motion to Dismiss") filed by defendant New Jersey Transit ("defendant"). (Mot. Dismiss, Apr. 26, 2013, ECF No. 25). On May 5, 2013, plaintiff Gabe S. Barrentine ("plaintiff") filed a cross motion to extend the time to serve defendant ("Cross Motion") and in opposition to the Motion to Dismiss. (Cross Mot., May 7, 2013, ECF No. 28). Pursuant to Local Civil Rule 72.1, the Honorable Kevin McNulty, United States District Judge, referred the Motion to Dismiss to this Court for Report and Recommendation. Pursuant to Federal Rule of Civil Procedure 78, the Undersigned did not hear oral arguments. For the reasons set forth below, the Court respectfully recommends that the District Court deny defendant's Motion to Dismiss (ECF No. 25) and grant plaintiff's Cross Motion to extend the time to serve defendant (ECF No. 28).
I. Factual Background and Procedural History
On June 25, 1988, defendant New Jersey Transit Bus Operations, Inc. hired plaintiff as a bus driver. (Second Am. Compl. ¶ 1, May 1, 2013, ECF No. 27). On April 6, 1995, plaintiff tested positive during a random drug test for THC Metabolite and, consequently, received a thirty-day suspension. (Id. ¶ 2). After completing an Employee Assistance Program, he returned to his duty as a bus driver. (Id.). On May 21, 2009, plaintiff was awarded a safe driving citation for driving his bus for twenty (20) years without an accident. (Id. ¶ 1).
Plaintiff alleges that every time his supervisor, John Piper, was stationed at plaintiff's working station, Piper would ridicule him by repeatedly using racial epithets against him, in front of several other employees. (Id. ¶ 3). Specifically, plaintiff alleges that at various times between 2009 and 2011, Piper referred to him as a "country ape" and "monkey boy." (Id.). Plaintiff further alleges that his difficulties with Piper worsened after plaintiff saw him at a "go-go bar" after work hours in November 2008. (Id. ¶ 4). Plaintiff alleges that Piper advised him not to tell anyone at work that Piper was at the "go-go bar, " and if plaintiff did in fact tell anyone at work, Piper would have him fired. (Id.). Plaintiff states that Piper believed he reported the "go-go bar" incident to other workers, which caused Piper to retaliate against him. (Id.).
In addition, plaintiff alleges that prior to November 25, 2008, he was randomly drug tested only five to six times over a period of thirteen years, since his last positive test. (Id. ¶ 5). However, after the "go-go bar" incident, plaintiff alleges that Piper investigated plaintiff by having two undercover inspectors ride his bus for two weeks. (Id.). After those two weeks, plaintiff was suspended for three days without pay for not calling out stops, and again for five days for failing to wear his seat belt. (Id.). On December 17, 2009, plaintiff tested positive during a random drug test for THC and was suspended for thirty days. (Id. ¶ 6). Thereafter, plaintiff was required to undergo weekly drug testing. (Id. ¶ 7). On January 21, 2011, plaintiff tested positive for cocaine and was terminated immediately. (Id.; see Certification of Gabe S. Barrentine ("Barrentine Cert.") ¶ 2, Exh. A, ECF No. 28). Plaintiff contests the January 21, 2011 positive drug test, claiming he had been on prescription pain medication for a shoulder injury. (Second Am. Compl. ¶ 8, ECF No. 27). Plaintiff further maintains that he has never taken cocaine. (Id.).
Through his union, co-defendant Amalgamated Transit Union, Local 822 ("ATU"), plaintiff filed a grievance against defendant. (Id. ¶ 10). ATU represented plaintiff during all four steps of the grievance procedure. However, the grievance was denied at all four steps. (Id.). On July 8, 2011, ATU notified plaintiff that he could appear before ATU's executive board to discuss his right to an arbitration hearing for his grievance. (Id. ¶ 11). Accordingly, plaintiff appeared before the board and asked it to take the matter to arbitration. Plaintiff also asked for the retention of a toxicologist because he believed the lab tests were inaccurate, as plaintiff maintained that he was on several prescription pain medications that did not show up on the test. (Id.). Plaintiff also requested that ATU take the matter to arbitration because Piper mistakenly believed he told other workers about the "go-go bar" incident, and as a result, discriminated and unfairly retaliated against him. (Id.). Plaintiff alleges that in spite of his protestations, the board determined not to proceed to arbitration because it believed plaintiff would lose. (Id. ¶ 12).
On July 14, 2011, plaintiff filed a grievance against defendant with the Division of Civil Rights, alleging discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. (Barrentine Cert. ¶ 6, ECF No. 28). The matter was then referred to the Equal Employment Opportunity Commission ("EEOC"), which investigated plaintiff's claims. (Id. ¶ 7). By way of a letter dated April 30, 2012, the EEOC advised plaintiff that it did not find evidence of discrimination and indicated that plaintiff had to file suit within ninety days or he would lose his right to sue. (Id. ¶ 8). Thus, on June 27, 2012, plaintiff, acting pro se, timely filed the instant complaint in this Court. (Compl., June 27, 2012, ECF No. 1).
On June 27, 2012, plaintiff filed an application to proceed in forma pauperis ("IFP") (IFP Appl., June 27, 2012, ECF No. 1-1) and an application for the appointment of pro bono counsel (Pro Bono Appl., June 27, 2012, ECF No. 2). On July 2, 2012, the Court denied plaintiff's pro bono application. (Order, July 2, 2012, ECF No. 4). However, the Court granted plaintiff's IFP application. (Order, July 2, 2012, ECF No. 5). On July 12, 2012, a summons was issued as to defendant. (Summons, July 12, 2012, ECF No. 7). Plaintiff then filed an amended complaint on July 13, 2012, naming ATU as a co-defendant. (Am. Compl., July 13, 2012, ECF No. 8). On that same date, the Clerk of the Court issued a summons as to ATU. (Summons, July 13, 2012, ECF No. 10). ATU was thereafter served within the time limits set forth by Federal Rules of Civil Procedure 4(c)(1) and 4(m).
On August 1, 2012, the case was reassigned from the Honorable Judge Esther Salas, U.S.D.J., to the Honorable Kevin McNulty, U.S.D.J. (Order, Aug. 1, 2012, ECF No. 11). On January 9, 2013, plaintiff's counsel entered a notice of appearance. (Notice of Appearance, Jan. 9, 2013, ECF No. 17). Plaintiff later filed an amended complaint (Am. Compl., Apr. 29, 2013, ECF No. 26) and, on May 1, 2013, he filed a second amended complaint (Second Am. Compl., May 1, 2013, ECF No. 27), alleging eleven counts against all defendants.
On April 26, 2013, defendant New Jersey Transit filed the instant Motion to Dismiss for failure to effect timely service of process pursuant to Federal Rule of Civil Procedure 4(m). (Mot. Dismiss, ECF No. 25). In response, on May 7, 2013, plaintiff filed the instant Cross Motion for an extension of time to effect service on defendant. (Cross Mot., ECF No. 28). Defendant filed a reply brief on May 14, 2013, in further support of the pending Motion to Dismiss and in opposition to plaintiff's Cross Motion. (Reply Br., May 14, 2013, ECF No. 29).
The Federal Rules of Civil Procedure mandate proper service of a summons and complaint upon a defendant within 120 days of its filing with the Court. Fed.R.Civ.P. 4(c)(1). "If a defendant is not served within 120 days after the complaint is filed, the court... must dismiss the action without prejudice against the defendant or order that service be made within a specified time." Fed.R.Civ.P. 4(m). "Once it has been determined that the plaintiff has failed to serve the defendant within 120 days of filing the complaint, a district court may determine whether an extension of time for service is warranted." Gonzalez v. Thomas Built Buses, Inc. , 268 F.R.D. 521, 526 (M.D. Pa. 2010). The Third Circuit "has set forth a two-pronged standard of review to determine whether granting an ...