United States District Court, D. New Jersey
ANTHONY J. TESTA, Plaintiff,
JACK HOBAN, et al. Defendants.
BRIAN R. MARTINOTTI, United States District Judge
MATTER is opened to the Court sua sponte on
an Order to Show Cause why the Complaint should not be
dismissed in its entirety for Plaintiff Anthony J. Testa
(“Testa”) as Executor for the Estate of Rose
Marie A. Testa's failure to serve defendants pursuant to
Federal Rule of Civil Procedure 4. (ECF No. 65.) The Court
also ordered Testa to amend the Complaint within fourteen
days of January 30, 2018, to cure the deficiencies therein.
(Id.). Testa failed to timely comply with the
Court's Order and instead filed an Application for an
Extension to File an Amended Complaint (the
“Application”) on February 14, 2018, which was
beyond the Court's deadline. (ECF No. 67.) For the
reasons set forth herein, Testa's Application is
DENIED and the Complaint is
DISMISSED WITH PREJUDICE in its entirety.
November 7, 2016, Testa filed the Complaint on behalf of his
mother's estate (“the Estate”) in the United
States District Court for the Southern District of New York.
Testa asserted claims against Defendants Jack Hoban, Joseph
Achacoso, numerous federal agencies (“Federal
Defendants”), the police departments and mayors of
several New Jersey municipalities (“Municipal
Defendants”), and several insurance companies
(collectively, “Defendants”) for allegedly
murdering his mother, Rose Marie A. Testa, covering up the
murder, repeatedly and systematically harassing Testa through
activities including illegal surveillance, interference with
Testa's educational, medical, business, and personal
relationships, tampering with Testa's mail, illegal
detention, and obstruction of Plaintiff's attempts to
pursue litigation. On February 7, 2017, the Honorable J. Paul
Oetken, U.S.D.J. issued an order to show cause as to why the
case should not be transferred to this Court in view of the
case already pending before this Court. (ECF No.9.) Testa
filed a brief in support of the case being venued in the
Southern District of New York (ECF No. 22) and Federal
Defendants filed a letter brief in support of transfer to the
District of New Jersey (ECF No. 21). On March 1, 2017, Judge
Oetken ordered the case transferred to this Court. (ECF No.
Defendants, Union Defendants, Point Pleasant Defendants,
Manchester Defendants, Kenilworth Defendants, and Bernards
Defendants filed motions to dismiss. (ECF Nos. 28, 38, 41,
42, 52, and 58.) Testa opposed Insurance Defendants'
Motion. (ECF No. 51.) He sought and was granted several
extensions to oppose the other motions. (ECF Nos. 31, 35, 39,
43, 44, 47, 53, 55, 56, 59, 60.) The Court informed Testa he
would receive no additional extensions and his failure to
comply with the briefing schedule in the Court's Order of
July 31, 2017, would result in the pending Motions to be
considered unopposed. (ECF No. 60.) On August 14, 2017, Testa
sought an additional extension. (ECF No. 61.) The Court
denied this request. (ECF No. 62.) On January 30, 2018, the
Court granted the motions to dismiss and issued the Order to
Show Cause. (ECF No. 65.) Testa also filed a Motion to Amend
the Complaint on July 11, 2017 (ECF No. 56), seeking to join
his cable television provider as a defendant, which the
Honorable Douglas E. Arpert, U.S.M.J. denied (ECF No. 63).
Application, which is thirty-three pages long, reiterates
many of the same assertions the Court identified as
deficient. (ECF No. 67.) Testa also makes new allegations,
including some involving individuals who are not parties to
the litigation. (Id. ¶ 19.4.) Testa estimates
he will need an extension until August 2018 to file an
Amended Complaint due to a variety of reasons, including
health issues, preparing for the New Jersey Bar Exam, and
because of “attempts by my opponents in federal
litigation to literally starve me to death.”
(Id. ¶¶ 19.1-19.3.) The Court finds
Testa's untimely request to be unreasonable and
improper. Procedurally, Plaintiff's request is
filed as an informal application rather than a formal motion,
and it fails to include a proposed amended complaint.
See L.Civ.R. 7.1, 15.1(b). Substantively, the
informal proposed amendments are outside of the scope of what
the Court permitted in its January 30, 2018 Order. The Court
has already denied Plaintiff's prior attempts to add
parties and claims (ECF No. 63) and sees no reason to, at
this later date, permit an amendment where an amendment
continues to be futile.
and perhaps most significantly, Plaintiff failed to respond
to the Court's Order directing him to show cause why his
case should not be dismissed for failure to properly serve
defendants. Although courts must liberally construe
submissions by pro se parties, Testa's pro
se status does not exempt him from compliance with the
Court's order and applicable rules. See Jones v.
Sec'y Pennsylvania Dep't of Corr., 589 F.
App'x 591, 593 (3d Cir. 2014) (“Although we
liberally construe pro se filings, [plaintiff] is
not exempt from procedural rules or the consequences of
failing to comply with them.”). Pursuant to Rule 4(m),
if service of the summons and complaint is not made within 90
days after the complaint is filed, the court “shall
dismiss the action without prejudice as to that defendant or
direct that service be effected within a specific
time.” See Sykes v. Blockbuster Video, 205 F.
App'x 961, 962 (3d Cir. 2006). “If the plaintiff
shows good cause for the failure, the court shall extend the
time for service. Id. (citing Fed.R.Civ.P. 4(m)).
Testa has not attempted to show good cause for the failure to
serve. “If service is put in issue by a defendant, a
plaintiff has ‘the burden of proving proper
service.'” McCray v. Unite Here, No.
13-CV-6450, 2014 WL 2611830 (D.N.J. June 11, 2014) (quoting
River Lopez v. Municipality of Dorado, 979 F.2d 885,
887 (1st Cir. 1992); citing Grand Entm't Grp., Ltd.
v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir.
1993)). The Application does not mention the issue of
service. Testa fails to demonstrate how this Court has
jurisdiction over defendants. A plaintiff “bears the
burden to prove, by a preponderance of the evidence, that
personal jurisdiction is proper.” Cerciello v.
Canale, 563 F. App'x 924, 925 n.1 (3d Cir. 2014)
(citing Carteret Sav. Bank, FA v. Shushan, 954 F.2d
141, 146 (3d Cir. 1992)).
IT IS on this 20th day of February 2018,
ORDERED that the Application for an
Extension to File an Amended Complaint (ECF No. 67) is
DENIED; and it is further
that the Complaint is DISMISSED WITH
PREJUDICE in its entirety for Plaintiff's
failure to serve defendants pursuant to Federal Rule of Civil
Procedure 4; and it is finally
that the Clerk should CLOSE the case.
 The Court uses “Testa” to
refer to him both in his capacity as Executor and as an
individual insofar as he is personally involved in
allegations in the Complaint.
 Plaintiff brings claims against Hoban;
Achacoso; the Federal Bureau of Investigation
(“FBI”); the Department of Justice
(“DOJ”); the United States Secret Service
(“USSS”); the Department of Homeland Security
(“DHS”); the Central Intelligence Agency
(“CIA”); the National Security Agency
(“NSA”); the Township of Union Police Department
(“Union PD”) and Mayor Manuel Figuieredo
(collectively, “Union Defendants”); the Toms
River Police Department (“Toms River PD”) and
Mayor Thomas Kelaher (collectively, “Toms River
Defendants”); the City of Newark Police Department and
Mayor Ras Baraka (“Newark Defendants”); the
Township of Colts Neck Police Department (“Colts Neck
PD”) and Mayor Thomas Orgo (collectively, “Colts
Neck Defendants”); the Kenilworth Police Department
(“Kenilworth PD”) and Mayor Anthony DeLuca
(collectively “Kenilworth Defendants”); the City
of Atlantic City Police Department and Mayor Donald A.
Guardian (“Atlantic City Defendants”); the
Township of Woodbridge Police Department and Mayor John
McCormac (“Woodbridge Defendants”); the Township
of Wall Police Department and Mayor Ann Marie Conte
(“Wall Defendants”); the Borough of Point
Pleasant Beach Police Department (“Point Pleasant
PD”) and Mayor Stephen D. Reid (collectively,
“Point Pleasant Defendants”); the Township of
Bernards Police Department (“Berndards PD”) and
Mayor John Carpenter (collectively, “Bernards
Defendants”); the Spring Lake Police Department and
Mayor Jennifer Naughton (“Spring Lake
Defendants”); the Township of Manchester Police
Department (“Manchester PD”) and Mayor Ken Palmer
(collectively, “Manchester Defendants”);
Prudential Insurance Company of America, Pruco Life Insurance
Company, Pruco Life Insurance Company of New Jersey,
Prudential Annuities, Inc. (improperly pled as
“Prudential Annuities”), Prudential Annuities
Life Assurance Corporation (improperly pled as Prudential
Annuities Life Insurance ...