United States District Court, D. New Jersey
MEMORANDUM and ORDER
KEVIN MCNULTY, U.S.D.J
defendants, Jordyn Massood, Christopher Rainone, and Justin
Sommers, have filed a motion to dismiss the complaint (ECF
no. 26). Another defendant, Skender Agic has filed a
substantially similar motion to dismiss. (ECF no. 31). For
the reasons stated herein, the motions will be denied in part
and, on consent, granted in part.
Failure to accomplish service within the Rule 4(m)
four defendants' motions are primarily motions under
Fed.R.Civ.P. 12(b)(5) to dismiss the complaint because the
plaintiff failed to serve these defendants within 90 days
after filing, as required by Fed.R.Civ.P. 4(m).
complaint was filed on October 21, 2016. The Rule 4(m)
deadline for service expired on January 19, 2017. Waivers of
service were delivered, but never executed.
plaintiffs response to the motions was twofold. She filed a
memorandum in opposition, and simultaneously moved for an
extension of time to accomplish service. (ECF nos. 40, 41,
49, 50) The two, however, are really one; the plaintiff
maintained that there was good cause to extend the service
deadline, and that once die deadline was extended, the basis
for the motion to dismiss would be removed.
Magistrate Judge Hammer filed an Opinion (ECF no. 80) and
Order (ECF no. 81) in which, among other things, he granted
the plaintiffs motions to extend die time for service.
Suffice it to say that Judge found that plaintiff had
demonstrated good cause and a reasonable basis for the delay.
The record, as surveyed in Judge Hammer's Opinion, will
easily bear the interpretation that the defendants have
attempted to evade service. As to all four of these
defendants, Judge Hammer extended the Rule 4(m) deadline. As
to Raimone, who had not yet been served, Judge Hammer
autiiorized substituted service through his attorney of
primary basis for the motions to dismiss-failure to effect
service within die Rule 4(m) deadline-has dius been removed.
The Rule 12(b)(5) motions to dismiss, insofar as they rest on
this basis, are therefore denied.
Failure to state a § 1983, NJCRA, or NJLAD
four defendants' also assert, in the alternative, that
die federal constitutional claims against them under 42
U.S.C. § 1983, as well as die State constitutional
claims under the New Jersey Civil Rights Act
("NJCRA"), must be dismissed pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In
essence, they state diat diey cannot be liable for any
constitutional violation because they are private parties,
not state actors. Likewise, they argue that diey cannot be
liable for any violation of die New Jersey Law Against
is no need to belabor the point. The plaintiff concedes that,
although the relevant counts are titled "as to all
defendants, " she "does not assert constitutional
and NJLAD claims against" these four particular
defendants. (ECF no. 40 at 27; ECF no. 49 at 18). The
plaintiffs concession refers explicitly to Counts 10
("NEW JERSEY CONSTITUTION AND THE NEW JERSEY CIVIL
RIGHTS ACT) and 11 ("HOSTILE EDUCATIONAL ENVIRONMENT
Violation of New Jersey's Law Against
Discrimination"). Surely Count 9 ("42 U.S.C. §
1983 EQUAL PROTECTION") was intended as well; at any
rate, it requires state action, and these defendants, college
students, were not affiliated with the state.
reasons set forth above, and for good cause shown:
IS this 14th day of September, 2017,
ORDERED that motion of defendants Jordyn
Massood, Christopher Rainone, and Justin Sommers (ECF no. 26)
and the motion of defendant Skender Agic (ECF no. 31) to
dismiss the complaint pursuant to Fed.R.Civ.P. ...