NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

JOAN MULLIN, ADMINISTRATRIX OF : CIVIL ACTION NO. 11-247 (MLC)

THE ESTATE OF ROBERT MULLIN, :

deceased, and JOAN MULLIN, : O R D E R

individually, :

 :

Plaintiff, :

 :

v. :

STATE OF NEW JERSEY, et al., :

 :

Defendants. :

 :

THE PLAINTIFF has brought this action against several

defendants. (See dkt. entry no. 1, Compl.; dkt. entry no. 45,

Am. Compl.; dkt. entry no. 102, 2d Am. Compl.) The plaintiff

incorrectly labeled the Amended Complaint as a second amended

complaint, and the Second Amended Complaint as a fourth amended

complaint. (See Am. Compl.; 2d Am. Compl.)

SERVICE UPON CERTAIN DEFENDANTS

It appears that the plaintiff has yet to serve the defendants

listed herein as (1) Erin Marusky, R.N., (2) Officer Dimler, and

(3) Beatrice Teel, R.N. (“Marusky, Dimler, and Teel”). (See dkt.

entry no. 10, 3-16-11 Pl. Letter (stating certain defendants

other than Marusky, Dimler, and Teel were served; plaintiff filed

copy of same letter under docket entry no. 36); dkt. entry no.

126, Letter Br. by defendants Administrator Karen Balicki,

Director Marie Dunlap-Pryce, and Director Robert Paterson (“DOC

Defendants”) at 2-3 (stating plaintiff is aware of addresses of

Case 3:11-cv-00247-MLC-LHG Document 129 Filed 03/08/13 Page 1 of 5 PageID: 1659
Dimler, Teel, and Marusky).) It also appears that this action

has been pending for more than 120 days without the plaintiff

having served Marusky, Dimler, and Teel. Furthermore, the

Court’s review of the plaintiff’s documents filed on the docket

reveals no explanation for the plaintiff’s apparent lack of

prosecution here.

I. Federal Rule of Civil Procedure 4(m)

“If a defendant is not served within 120 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.” Fed.R.Civ.P. 4(m). Thus, the Court

will dismiss the Second Amended Complaint (incorrectly docketed

as a fourth amended complaint) insofar as it is asserted against

Marusky, Dimler, and Teel unless the plaintiff establishes that

service has been effected upon them. See Demos v. President of

U.S., 365 Fed.Appx. 341, 342 (3d Cir. 2010); Sykes v. Blockbuster

Video, 205 Fed.Appx. 961, 963-64 (3d Cir. 2006); Liu v. Oriental

Buffet, 134 Fed.Appx. 544, 546 (3d Cir. 2005).

II. Local Civil Rule 41.1(a)

It alternatively appears that this action has been pending

for more than 120 days without the plaintiff having taken any

proceedings against Marusky, Dimler, and Teel. The Court will

dismiss the Second Amended Complaint (again, incorrectly docketed

2

Case 3:11-cv-00247-MLC-LHG Document 129 Filed 03/08/13 Page 2 of 5 PageID: 1660
as a fourth amended complaint) insofar as it is asserted against

Marusky, Dimler, and Teel unless the plaintiff takes steps to

prosecute this action insofar as it has been brought against

them. See L.Civ.R. 41.1(a); see also Fed.R.Civ.P. 41(b). The

Court is authorized to impose harsh penalties when enforcing the

Local Civil Rules. See Kabacinski v. Bostrom Seating, 98

Fed.Appx. 78, 82 n.3 (3d Cir. 2004); see also Knoll v. City of

Allentown, No. 12-1635, 2013 WL 628415, at *3 (3d Cir. Feb. 21,

2013) (stating local civil rules play a vital role in a district

court’s efforts to manage itself and its docket).1

III. Plaintiff’s Response

Merely filing proof of service upon Marusky, Dimler, and

Teel now will not be tantamount to compliance with this Order,

the Federal Rules of Civil Procedure, or the Local Civil Rules. 

The plaintiff, if intending to proceed against Marusky, Dimler,

and Teel, must directly respond to this Order by filing a

separate letter or brief on the electronic docket.

SEPARATE MOTIONS TO DISMISS

The DOC Defendants have filed a motion to dismiss the Second

Amended Complaint insofar as it is asserted against them. (See

dkt. entry no. 111, DOC Defs. Notice of Mot.) The defendant

 The Court will balance the Poulis factors if necessary. 1

See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d

Cir. 1984).

3

Case 3:11-cv-00247-MLC-LHG Document 129 Filed 03/08/13 Page 3 of 5 PageID: 1661
listed as Jane Byrd, L.P.N., then separately filed a motion to

dismiss the claims asserted against her (“Byrd Motion”). (See

dkt. entry no. 114, Byrd Notice of Mot.)

The Court has the inherent power to control the docket. 

Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Rolo v. Gen. Dev.

Corp., 949 F.2d 695, 702 (3d Cir. 1991). The Court, for the ease

of its own administration, will administratively terminate the

DOC Defendants Motion, and then decide it on the merits

simultaneously with the Byrd Motion soon. This administrative

termination is not the equivalent of a determination of the DOC

Defendants Motion on the merits — indeed, the Court is treating

the DOC Defendants Motion as being pending — and is being

instituted purely for administrative reasons that need not

concern the parties. The parties should continue to litigate the

DOC Defendants Motion.

FOR GOOD CAUSE APPEARING:

4

Case 3:11-cv-00247-MLC-LHG Document 129 Filed 03/08/13 Page 4 of 5 PageID: 1662
IT IS THEREFORE on this 8th day of March, 2013,

ORDERED that THE SECOND AMENDED COMPLAINT INSOFAR AS IT IS

ASSERTED AGAINST THE DEFENDANTS ERIN MARUSKY, R.N., OFFICER

DIMLER, AND BEATRICE TEEL, R.N. WILL BE DISMISSED ON MARCH 22,

2013, without further notice to the plaintiff, unless before that

date the plaintiff responds to this Order, and complies with the

Federal Rules of Civil Procedure and the Local Civil Rules in the

manner described herein; and

IT IS FURTHER ORDERED that no further enlargements of time

will be granted to the plaintiff to comply with this Order; and

IT IS FURTHER ORDERED that if the plaintiff fails to respond

to this Order in the manner described herein, then the plaintiff

will be deemed to support dismissal of the Second Amended

Complaint insofar as it is asserted against the aforementioned

defendants; and

IT IS FURTHER ORDERED that the motion by the defendants

listed as Administrator Karen Balicki, Director Marie

Dunlap-Pryce, and Director Robert Paterson to dismiss the Second

Amended Complaint insofar as it is asserted them (dkt. entry no.

111) is ADMINISTRATIVELY TERMINATED, and will be determined on

the merits simultaneously with the separate motion filed under

docket entry no. 114.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

5

Case 3:11-cv-00247-MLC-LHG Document 129 Filed 03/08/13 Page 5 of 5 PageID: 1663