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Jones v. PI Kappa Alpha International Fraternity, Inc.

United States District Court, D. New Jersey

September 14, 2017

JANE JONES, Plaintiff,
v.
PI KAPPA ALPHA INTERNATIONAL FRATERNITY, INC., et al., Defendants.

          OPINION

          Michael A. Hammer United States Magistrate Judge.

         I. INTRODUCTION

         This matter comes before the Court by way of Plaintiff Jane Jones's[1] (“Plaintiff”) motions for extensions of time to effect service on five Defendants: Christopher Rainone (“Rainone”), Justin Sommers (“Sommers”), Jordyn Massood (“Massood”), Skender Agic (“Agic”), and Pi Kappa Alpha Local Chapter Mu Zeta (“PIKE Local”). Pl.'s Mots. for Extensions of Time to Serve, D.E. 41, 46, 50. Plaintiff also seeks leave to serve Defendants Rainone and PIKE Local by alternative means pursuant to Federal Rule of Civil Procedure 4(e). Pl.'s Mots. for Substitute Service, D.E. 41, 46. Specifically, Plaintiff requests leave to effect service on Rainone through his attorney and by way of regular and certified mail, and requests leave to serve PIKE Local through its insurance carrier, Certain Underwriters at Lloyd's of London (“Lloyd's of London”). Pl.'s Ltr. in Supp. of Mot. for Sub. Service at 2, D.E. 41-1; Pl.'s Br. in Supp. of Mot. for Sub. Service at 14, D.E. 46-1. Defendants Rainone, Sommers, Massood, and Agic oppose the Plaintiff's application. Defs. Opp'n Briefs, D.E. 47, 53. Defendant PIKE Local has not opposed the motion. However, Lloyd's of London, as PIKE Local's insurance carrier, filed an application to intervene and opposition to Plaintiff's request for substitute service. D.E. 51, 52.

         Pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1, the Court decided these motions without oral argument. For the reasons set forth below, Plaintiff's motions are granted in part and denied in part.

         II. BACKGROUND

         Plaintiff filed this action on October 21, 2016, alleging that she was the victim of multiple sexual assaults on or about November 14, 2014 while she was a student at Ramapo College of New Jersey. See generally Compl., D.E. 1. The Complaint alleges that the sexual assault began at a PIKE Fraternity party, where alcohol was being served to minors, and extended to a dorm room on the Ramapo College campus. Id. Plaintiff brings claims against Defendants Sommers, Massood, and Rainone[2] alleging negligence, failure to render assistance to victim, intentional infliction of emotional distress, aiding commission of a tort, and the unlawful recording of sexual images. Id. ¶¶ 243-270. As against Defendant PIKE Local and Defendant Agic, individually and as President of PIKE Local at Ramapo during the time of Plaintiff's sexual assault, Plaintiff alleges claims of negligence, social host liability, social host agency, and negligent supervision. Id. ¶¶ 124-167.

         The Complaint in this case was filed on October, 21, 2016, and therefore the ninety-day deadline to serve Defendants with the Summons and Complaint was January 19, 2017. See Fed. R. Civ. Pro. 4(m). Plaintiff alleges that after the Complaint was filed she “was diligent and has attempted multiple legitimate avenues to serve Defendants with the Summons and Complaint” within the ninety-day time period. See Pl.'s Br. in Opp'n of Mot. to Dismiss at 5, D.E. 40; see also Pl.'s Br. in Supp. of Mot. for Extension at 11, D.E. 46-1. However, Plaintiff failed to serve any of the five Defendants at issue in these motions with the Summons and Complaint by January 19, 2017. Defendant Agic was personally served on March 2, 2017, Defendant Sommers was personally served on March 22, 2017, and Defendant Massood was personally served on April 6, 2017. See Affidavits of Service, D.E. 21, 29, 38. To date, Defendants Rainone and PIKE Local have not been served.

         On March 24, 2017, Defendants Massood, Sommers, and Rainone moved to dismiss the Complaint against them based on Fed.R.Civ.P. 12(b)(5) for Plaintiff's failure to serve them within ninety days of filing the Complaint. See Mot. to Dismiss, D.E. 26. Plaintiff opposed this motion and simultaneously filed the present motion to extend time to serve as to Defendants Massood, Sommers, and Rainone, and requested leave to serve Defendant Rainone through his attorney. See Pl.'s Opp'n to Mot. to Dismiss, D.E. 40; see also Pl.'s Ltr. in Supp. of Mot. for Extension and Sub. Service, D.E. 41-1. On April 17, 2017, Defendant Agic also moved to dismiss the Complaint for failure to effect timely service pursuant to Fed.R.Civ.P. 12(b)(5). See Mot. to Dismiss, D.E. 31. Plaintiff opposed Agic's motion and simultaneously filed the present motion for an extension of time to serve. See Pl.'s Opp'n to Mot. to Dismiss, D.E. 49; see also Pl.'s Ltr. in Supp. of Mot. for Extension, D.E. 50. On May 9, 2017, Plaintiff filed a motion for extension of time to serve Defendant PIKE Local, and also requested leave to serve PIKE Local through its insurance carrier, Lloyd's of London. See Mot. for Extension and Sub. Service, D.E. 46.

         III.DISCUSSION

         a. Applicable Legal Standards

         Federal Rule of Civil Procedure 4(m) governs extensions of time to effect service. Rule 4(m) provides that “[i]f a defendant is not served within 90 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.” If a plaintiff fails to effect proper service within the ninety-day period but “shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. Thus, pursuant to Rule 4(m), a district court must first assess whether good cause exists for an extension of time. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). “If good cause is present, the district court must extend time for service and the inquiry is ended. If, however, good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service.” Id.

         In assessing whether a plaintiff has demonstrated good cause warranting a mandatory extension of time to serve, the United States Court of Appeals for the Third Circuit has advised that a Court should consider the “(1) reasonableness of plaintiff's efforts to serve (2) prejudice to the defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to serve.” MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (citing United States v. Nuttall, 122 F.R.D. 163, 166-67 (D. Del. 1988)). The Court's analysis should mainly focus on whether a plaintiff has demonstrated “good faith” in requesting the extension and whether there is “some reasonable basis for noncompliance within the time specified in the rule.” Id. (citing Petrucelli, 46 F.3d at 1312). The Third Circuit has also instructed that while prejudice to defendant “may tip the ‘good cause' scale, the primary focus is on the plaintiff's reasons for not complying with the time limit in the first place.” Id.

         Federal Rule of Civil Procedure 4(e) governs substitute service. Rule 4(e) provides that service can be effectuated “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Pursuant to New Jersey law, personal service is the primary and preferred method to serve an individual defendant located within the state. N.J. Ct. R. 4:4-4(a). However, when personal service cannot be effectuated in accordance with N.J. Ct. R. 4:4-4(a), New Jersey law allows for substitute modes of service so long as the proposed form of service is “provided by court order, consistent with due process of law.” See N.J. Ct. R. 4:4-4(b)(3).

         Whether Plaintiff is entitled to the extensions of time to effect service for each of the five Defendants at issue shall be addressed in turn below. Additionally, Plaintiff's requests for leave to serve Defendants Rainone and PIKE Local by alternative means shall also be discussed below.

         b. Analysis

         i. Defendant Rainone

         On November 16, 2016, approximately three weeks after the Complaint was filed, Plaintiff's counsel, Patrick J. Whalen (“Whalen”), sent a waiver of service of the Summons and Complaint to Rainone's criminal defense attorney, Shelley Albert. See Certification of Patrick J. Whalen ¶ 3. (“Whalen Cert.”), D.E. 40-1.[3] Whalen believed that Ms. Albert had represented Rainone in the Ramapo College disciplinary proceedings related to the same sexual assault at issue in this civil case. See Pl.'s Br. in Opp'n to Mot. at 7, D.E. 40; see also Whalen Cert. ¶ 24, D.E. 40-1.[4] Whalen was under the mistaken belief that Ms. Albert was also representing Rainone in this civil action. Ms. Albert's office signed for the certified mailing of the waiver form on November 23, 2016. See Return Receipt, November 23, 2016, Exh. A to Whalen Cert., D.E. 40-2.

         According to Whalen, on November 15, 2016, he was contacted by a representative from Rainone's mother's homeowner's insurance company, CastlePoint, inquiring as to whether Whalen was “the Patrick J. Whalen who filed the attached lawsuit for Ms. Jones?” See Email Correspondence, November 15, 2016, Exh. B to Whalen Cert., D.E. 40-2. Whalen inferred from this communication that Rainone had received the Complaint and that he or his mother had provided a copy of the complaint to the homeowner's insurance company. According to Plaintiff, a declaratory judgment action was filed against Rainone on April 20, 2017 in the New York Supreme Court, and that the complaint in that case stated ...


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