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Lovett v. Borough of Clementon

United States District Court, District of New Jersey

November 3, 2014

BENJAMIN LOVETT, Plaintiff,
v.
BOROUGH OF CLEMENTON, et al., Defendants

For BENJAMIN LOVETT, Plaintiff: STEPHEN THOMAS O'HANLON, LEAD ATTORNEY, THE O'HANLON LAW FIRM PC, PHILADELPHIA, PA.

For BOROUGH OF CLEMENTON, CHIEF RANDALL FREILING, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CLEMENTON POLICE DEPARTMENT, SERGEANT ROBERT WORRICK, BADGE NUMBER 123 INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CLEMENTON POLICE DEPARTMENT, Defendants: JOHN CHARLES GILLESPIE, LEAD ATTORNEY, PARKER MCCAY, PA THREE GREENTREE CENTRE, MARLTON, NJ.

MEMORANDUM OPINION

Hon. Joseph H. Rodriguez, UNITED STATES DISTRICT JUDGE.

This matter having come before the Court on Defendant Borough of Clementon's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b) (5), Fed.R.Civ.P. 4(m), and L. Civ. R 41.1(a); and

The Court having considered the submissions of the parties as well as the arguments advanced at the hearing on October 15, 2014; and

The Court noting that this matter was filed on July 26, 2013 by attorney William H. Buckman, Esquire[1] and that the 120-day service period expired on November 23, 2013; and

The Court further noting that a Notice of Call for dismissal pursuant to L. Civ. R. 41.1(a) was published by the Clerk for failure to serve the Complaint and that such notice caused Mr. Buckman to respond in Certification [Dkt. No. 4] that he did not file and/or authorize the filing of the present Complaint; and

The Court further noting that although Mr. Buckman withdrew as counsel and new counsel, Stephen T. O'Hanlon, Esquire, entered an appearance, to date, the Complaint has yet to be served upon Defendants in violation of Fed.R.Civ.P. 4(m)[2]; and

The Court finding that, in light of Mr. Buckman's assertion that he did not authorize the filing of the Complaint under his signature, the Complaint violates Fed.R.Civ.P. 11(a) and L. Civ. R. 11.1 in that it fails to contain the signature of " the attorney of record who is a member of the bar of this Court[.]" L. Civ. R. 11.1[3]; and

The Court further finding that although the record demonstrates confusion between counsel as to the initial filing of the Complaint, no corrective action has been taken in the year and two months since the Complaint was filed, or even after Defendants filed the present motion to dismiss on April 11, 2014. In addition, the record is devoid of good cause[4] as to the lack of action with respect to correcting the existing deficiencies by properly filing and serving the Complaint[5]; as a result,

Defendants' Motion to Dismiss [9] is granted.


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