IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MARIA ORTIZ, 

on behalf of the Estate of

JORGE E. RIVERA, and on

behalf of J.R., a minor, 

Plaintiffs,

v.

CITY OF CAMDEN, NEW JERSEY

STATE POLICE, CAMDEN COUNTY

PROSECUTOR'S OFFICE, TROOPER

DENNIS QUINN, INVESTIGATOR

PETER LONGO, INVESTIGATOR

THOMAS DINUNZIO, JOHN DOES

1-5, in their Individual and

Official capacities,

Defendants.

CITY OF CAMDEN, 

 Cross-Claimant, 

v.

NEW JERSEY STATE POLICE and 

JOHN DOES 1-5, in their

Individual and Official

capacities, 

 Cross-Defendants.

CIVIL NO. 11-2300(NLH)(AMD)

OPINION

APPEARANCES:

RYAN MARC LOCKMAN 

MARK B. FROST

MARK FROST & ASSOCIATES 

PIER 5 AT PENN'S LANDING 

7 NORTH COLUMBUS BOULEVARD 

PHILADELPHIA, PA 19106 

Attorneys for plaintiffs

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JEAN SHARON CHETNEY

JAY J. BLUMBERG 

Law Offices of Jay J. Blumberg, Esq. 

158 DELAWARE STREET 

P.O. BOX 68 

WOODBURY, NJ 08096 

Attorneys for City of Camden

VINCENT J. RIZZO, JR. 

OFFICE OF THE NJ ATTORNEY GENERAL 

RJ HUGHES JUSTICE COMPLEX 

25 MARKET STREET 

PO BOX 112 

TRENTON, NJ 08625-0112 

Attorney for New Jersey State Police and Dennis Quinn

JOHN C. CONNELL

JOHN PATRICK KAHN 

ARCHER & GREINER P.C. 

ONE CENTENNIAL SQUARE 

HADDONFIELD, NJ 08033

Attorneys for the Camden County Prosecutor’s Office, Peter

Longo, and Thomas DiNunzio

HILLMAN, District Judge

In this case involving claims of excessive force by law

enforcement officers, presently before the Court is the motion of

defendants, the Camden County Prosecutor’s Office, Peter Longo,

and Thomas DiNunzio, to dismiss plaintiffs’ complaint against

them. For the reasons expressed below, defendants’ motion will

be granted in part and denied in part.

BACKGROUND

Plaintiffs’ complaint relates the following: On April 22,

2009, in Camden, New Jersey, Jorge E. Rivera was sitting outside

with friends. Police officers approached the group, Rivera’s

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friends ran away, but Rivera remained seated. While Rivera

attempted to swallow a small plastic bag, the officers grabbed

Rivera, shoved him to the ground, and kicked him. After they

handcuffed and restrained him, the officers continued to kick and

punch Rivera on his head and body. During this encounter, Rivera

began to choke on the bag, which had become lodged in his throat. 

The officers knew he was choking and unable to breathe, but they

continued to beat him. Even after he slumped over unconscious,

the officers continued their attack. Because of a gathering

crowd, the officers finally halted their attack and sent Rivera

to Cooper University Hospital. He was pronounced dead upon

arrival. Rivera’s cause of death was asphyxiation from the

plastic bag in his throat.

Plaintiff, Maria Ortiz, is the administrator of Rivera’s

estate, and she is the mother of plaintiff, J.R., who is Rivera’s

minor son. Plaintiffs claim that the defendants’ use of

excessive force on Rivera caused him to asphyxiate on the plastic

bag, in addition to his suffering from their physical assault

prior to becoming unconscious. They have brought claims for

violations of Rivera’s civil rights under federal and state law,

as well as for assault and battery and wrongful death. 

Over the course of three amended complaints, plaintiffs have

advanced their claims against the City of Camden, the New Jersey

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State Police, New Jersey State Trooper Dennis Quinn, the Camden

County Prosecutor’s Office, and two investigators for the

prosecutor’s office, Peter Longo and Thomas DiNunzio. The Camden

County Prosecutor’s Office, Longo, and DiNunzio have moved to

dismiss plaintiffs’ claims against them. The prosecutor’s office

has moved to dismiss plaintiffs’ claims against it because it is

immune from suit under the principles of sovereign immunity. 

Plaintiffs do not dispute that their claims against the

prosecutor’s office, as well as claims against Longo and DiNunzio

in their official capacities, should be dismissed on that basis. 

Plaintiffs do dispute, however, Longo and DiNunzio’s motion to

dismiss their claims because of plaintiffs’ failure to properly

serve them, and because of plaintiffs’ failure to assert claims

against them within the applicable statue of limitations. 

Plaintiffs argue that they properly served Longo and DiNunzio,

and that their complaint is not barred by the running of the

applicable statute of limitations. 

DISCUSSION

A. Jurisdiction

Plaintiffs have brought their claims pursuant to 42 U.S.C. §

1983, as well as pursuant to the New Jersey constitution and New

Jersey state law. This Court has jurisdiction over plaintiffs’

federal claims under 28 U.S.C. § 1331, and supplemental

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jurisdiction over plaintiffs’ state law claims under 28 U.S.C. §

1367.

B. Analysis

Plaintiffs’ original complaint, filed on April 22, 2011,

named as defendants the City of Camden and “John Does #1 & #2 in

their individual and official capacities.” Their first amended

complaint was filed on June 10, 2011, and it did not add any new

parties. On October 26, 2011, plaintiff’s motion to file a

second amended complaint was granted, and that complaint added

the New Jersey State Police as a defendant. 

On June 27, 2012, plaintiffs filed a third amended

complaint, without leave of court, and added the Camden County

Prosecutor’s Office, Peter Longo, and Thomas DiNunzio as

defendants. After plaintiffs attempted to obtain a default 1

judgment against the Camden County defendants for their failure

to respond to the third amended complaint, on August 22, 2012,

counsel entered an appearance on their behalf, and filed a motion

to set aside the Clerk’s entry of default. Through conferences

with the Magistrate Judge, on October 23, 2012, it was agreed

that the default would be set aside, the third amended complaint

Plaintiffs also added as a defendant New Jersey state trooper 1

Dennis Quinn. On July 10, 2012, the New Jersey State Police and

Quinn filed an answer to plaintiffs’ complaint, and lodged crossclaims against the City of Camden and the Camden County

defendants. 

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deemed to have been filed on June 27, 2012, and the Camden County

defendants would have 30 days to respond to the complaint.

The Camden County defendants have moved to dismiss

plaintiffs’ complaint against them on two grounds. First, 2

defendants argue that plaintiffs’ claims against them must be

dismissed because plaintiffs never properly served them with

their complaint. Second, defendants argue that they were not

named as defendants until a year and two months after the

expiration of the statute of limitations, and that plaintiffs’

claims cannot be saved by the fictitious party practice rule or

the relation back rule. 

Plaintiffs do not dispute that a two-year statute of

limitations governs their claims, and that the statute of

limitations ran on April 23, 2011. See Cowell v. Palmer Twp.,

When considering a motion to dismiss a complaint for failure to 2

state a claim upon which relief can be granted pursuant to

Federal Rule of Civil Procedure 12(b)(6), a court must accept all

well-pleaded allegations in the complaint as true and view them

in the light most favorable to the plaintiff. Evancho v.

Fisher, 423 F.3d 347, 351 (3d Cir. 2005). A district court, in

weighing a motion to dismiss, asks “‘not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claim.’” Bell Atlantic v. Twombly, 550

U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S.

232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684

(2009) (“Our decision in Twombly expounded the pleading standard

for ‘all civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final

nail-in-the-coffin for the ‘no set of facts’ standard that

applied to federal complaints before Twombly.”). 

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263 F.3d 286, 291 (3d Cir. 2001) (noting § 1983 actions in New

Jersey are governed by a two-year statute of limitations);

N.J.S.A. 2A:14-2 (two-year statute of limitations for torts).

Plaintiffs argue that their naming of “John Doe” defendants in

their original complaint filed on April 22, 2011, within the

limitations period, preserves their claims against the Camden

County defendants because once they determined, through

discovery, the correct identities of the officers involved in

Rivera’s death, they amended their complaint accordingly to

substitute the Camden County officers for the “John Doe”

defendants. Relatedly, plaintiffs argue that their third amended

complaint “relates back” to their original complaint, and their

claims against the Camden County defendants are therefore deemed

to have been filed on April 22, 2011 when they filed their

original complaint. With regard to service, plaintiffs argue

that they properly served DiNunzio and Longo.

1. Whether plaintiffs’ claims against the Camden County

defendants are barred by the statute of limitations

As a primary matter, the fictitious party practice rule and

the relation back rule are both methods to add a defendant to a

case after the statute of limitations has run, but the rules are

distinct in their application. “Relation-back is a way of

justifying the belated addition of a new claim or a new party.

Fictitious-party practice renders the initial filing against the

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identified but unnamed defendant timely in the first instance,

subject only to diligent action by the plaintiff to insert

defendant’s real name.” Greczyn v. Colgate-Palmolive, 869 A.2d

866, 874 (N.J. 2005); see also Viviano v. CBS, Inc., 503 A.2d

296, 304 (N.J. 1986) (explaining the differences between the

fictitious party practice rule and the relation back rule, and

noting that the requirements of the relation back rule “are not

an express prerequisite to recourse to” the fictitious party

practice rule). As explained below, because the Court finds that

plaintiffs have satisfied the requirements of the fictitious

party rule, the Court does not need to undertake a Rule 15(c)

relation back analysis.3

Rule 15(c) provides that an amendment to a pleading relates back 3

to the date of the original pleading in three instances: 

(A) the law that provides the applicable statute of

limitations allows relation back; 

(B) the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out

— or attempted to be set out — in the original

pleading; or 

(C) the amendment changes the party or the naming of

the party against whom a claim is asserted, if Rule

15(c)(1)(B) is satisfied and if, within the period

provided by Rule 4(m) for serving the summons and

complaint, the party to be brought in by amendment: 

(I) received such notice of the action that it

will not be prejudiced in defending on the merits;

and 

(ii) knew or should have known that the action

would have been brought against it, but for a

mistake concerning the proper party’s identity. 

Fed. R. Civ. P. 15(c)(1).

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New Jersey Court Rule 4:26-4, which is applicable in federal

court, see DeRienzo v. Harvard Industries, Inc., 357 F.3d 348,

353 (3d Cir. 2004) (citing N.J.S.A. 2A:14-2 and N.J. R. 4:26-4),4

permits a plaintiff to amend his complaint to identify the proper

party as long as a John Doe fictitious designation was included

for that specific category of defendant. See Yarchak v. Trek

Bicycle Corp., 208 F. Supp. 2d 470, 489 (D.N.J. 2002) (citing

Mancuso v. Neckles, 747 A.2d 255, 261 n.1 (N.J. 2000) and

discussing N.J. Ct. R. 4:26-4) (“[T]he fictitious party rule

permits a plaintiff to preserve a claim against as yet

unidentified potential defendants who may have contributed to

plaintiff's injuries.”). The Rule provides, in relevant part, 

In any action, irrespective of the amount in

controversy, other than an action governed by R. 4:4-5

(affecting specific property or a res), if the

defendant's true name is unknown to the plaintiff,

process may issue against the defendant under a

fictitious name, stating it to be fictitious and adding

an appropriate description sufficient for

identification. Plaintiff shall on motion, prior to

judgment, amend the complaint to state defendant's true

name, such motion to be accompanied by an affidavit

stating the manner in which that information was

obtained. . . .

N.J. Ct. R. 4:26-4. 

See also Bryan v. Associated Container Transp. (A.C.T.), 837 F. 4

Supp. 633, 642-43 (D.N.J. 1993) (explaining that the federal

rules do “not apply to preclude any relation back that may be

permitted under the applicable limitations law,” and that the

application of New Jersey’s fictitious party rule is permitted as

long as a party meets the requirements of that rule). 

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There are three main elements to the proper application of

the fictitious party rule. First, the fictitious name 5

designation must have “an appropriate description sufficient to

identify” the defendant. N.J. Rule 4:26-4; Viviano, A.2d at 304. 

Second, the plaintiff must have exercised due diligence to

ascertain the defendant’s true name before and after filing the

complaint. DeRienzo, 357 F.3d at 353 (citing Farrell v. Votator

Div. of Chemetron Corp., 299 A.2d 394, 396 (N.J. 1973); Claypotch

v. Heller, Inc., 823 A.2d 844, 848-49 (N.J. 2003); Mears v.

Sandoz Pharms., Inc., 693 A.2d 558, 561-63 (N.J. 1997)). Third,

the application of the fictitious party practice rule must not

prejudice the defendant. Id. 

Plaintiffs here have satisfied all three elements. With

regard to the specificity of the fictitious party named in the

complaint, plaintiffs originally named “John Does #1 & #2 in

Because plaintiffs did not file a motion for leave to file the 5

third amended complaint, and because the third amended complaint

was deemed filed by agreement of the parties, the Court did not

have the opportunity to determine the propriety of adding the

Camden County defendants prior to their addition, which is the

usual procedural posture of the fictitious party practice rule

analysis. Based on plaintiffs’ arguments in opposition to

defendants’ motion to dismiss, the Court presumes that if

plaintiffs had properly sought leave to add the Camden County

defendants to the case, they would have affirmatively moved to do

so pursuant to the fictitious party practice rule. The only

difference in the outcome between the procedurally proper course

and the current course is that the Court would not have permitted

the addition of the Camden County Prosecutor’s Office from the

outset. 

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their individual and official capacities.” The defendants they

have substituted for the “John Does” are Investigator Peter

Longo, in his individual and official capacity, and Investigator

Thomas DiNunzio, in his individual and official capacity. It is

clear by the description of the John Doe defendants that

plaintiffs contemplated the addition of the police officers

involved in Rivera’s death, but they did not know the identities

of those officers in order to specifically name them in their

original complaint. Plaintiffs’ fictitious party designation

meets the first requirement of the application of the rule.

Plaintiffs’ due diligence in ascertaining the identities of

the Camden County defendants, which is the second element of the

fictitious party practice rule, is the primary basis on which

defendants have moved to dismiss plaintiffs’ claims against them. 

In August 2009, counsel for Rivera’s mother, who is not a

plaintiff in this case, filed a notice of tort claim against the

Camden City Police Department, the New Jersey State Police, and

the Camden County Prosecutor’s Office. Defendants point out that

when plaintiffs filed their complaint on April 22, 2011 against

only the City of Camden, they referenced the tort claim notice in

the body of the complaint, including that it was served on the

New Jersey State Police and the Camden County Prosecutor’s

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Office. (See April 22, 2011 Compl. ¶ 24.) Defendants argue 6

that plaintiffs therefore knew about Camden County’s possible

involvement in the Rivera incident at least as of the drafting

and filing of their complaint on April 22, 2011. Defendants

contend that not only did plaintiffs not name the Camden County

Prosecutor’s Office as a defendant then, they failed to make any

diligent inquiries into its involvement until they filed their

third amended complaint over a year later. Defendants argue that

plaintiffs have clearly failed to satisfy the due diligence

requirement.

In her opposition, plaintiff Ortiz explains in an affidavit

that she was unaware that Rivera’s mother hired an attorney and

that he filed a tort claim notice at that time. Plaintiff 7

states that she believed that the City of Camden was involved in

Rivera’s death, but she was not aware of the other parties

The complaint states that the tort claims notice is attached as 6

“Exhibit A,” but the exhibit is not filed on the docket.

Defendants argue that plaintiff Ortiz is changeable with knowing 7

about the tort claims notice and its mention of the Camden County

Prosecutor’s Office in 2009. Moreover, they seek to strike

plaintiff's affidavit as improper because it contains information

not within her personal knowledge. 

The fictitious party practice rule requires plaintiff to

file “an affidavit stating the manner in which that information

[about the true name of the defendant] was obtained.” N.J. Ct.

R. 4:26-4. The Court finds that Ortiz’s affidavit complies with

the rule and will not be struck. The effect of the tort claims

notice is discussed above.

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involved. Once discovery revealed, through a New Jersey State

Police Investigation Report, that DiNunzio and Longo were

involved, she filed an amended complaint to specifically name the

officers. 

The Camden County defendants make a valid, common sense

argument. Plaintiffs or their current counsel, or both, knew as

of April 22, 2011 that another lawyer sent a tort claims notice

to the Camden County Prosecutor’s Office, and based on that

knowledge, they should have at least named the Camden County

Prosecutor’s Office as a defendant, and then have inquired more

diligently into the names of the officers involved. The Camden

County defendants fault plaintiffs for waiting to uncover

DiNunzio and Longo’s identities through standard written

discovery requests, which took a year to do.

“The New Jersey Supreme Court has instructed that [the

district] court should broadly interpret the diligence

requirement to one of a ‘good faith’ effort by plaintiff to

determine the fictitious party’s identity.” Prystowsky v. TGC

Stores, Inc., 2011 WL 3516174, *4 (D.N.J. 2011) (citing Farrell,

299 A.2d at 396) (other citation omitted). Sufficient diligence

is determined on a case-by-case basis. Carroll v. Setcon

Industries, Inc., 2012 WL 3229159, 5-6 (D.N.J. 2012) (citing

DeRienzo, 357 F.3d at 354 (finding sufficient diligence even

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though plaintiff was “thwarted in his investigation by

misinformation from government witnesses”); Prystowsky, 2011 WL

3516174, at *4 (determining that sending subpoenas, investigating

potential defendants, and taking depositions constituted

diligence despite ensuing delays); Matynska v. Fried, 175 N.J. 51

(N.J. 2002) (reasoning that plaintiff's failure to ascertain

defendant's name from plaintiff's own hospital records

constituted a lack of diligence); Mears, 693 A.2d at 631–32

(finding lack of sufficient diligence where “a simple inquiry at

the job site” would have revealed defendant's name)). 

Here, even though plaintiffs were not tenacious in their

quest to identify the officers involved in Rivera’s death, their

efforts are sufficient to meet the due diligence requirement. As

a primary matter, plaintiffs’ apparent knowledge that a tort

claims notice was sent to the Camden County Prosecutor’s Office

by a prior attorney who has never represented plaintiffs in this

case does not impose an obligation to name the Camden County

Prosecutor’s Office as a defendant in their original complaint. 

Current counsel may not have had a good faith basis to name the

Camden County Prosecutor’s Office as a defendant because neither

he, nor his client, knew for certain that the office was involved

in the incident. Moreover, as plaintiffs concede, the Camden

County Prosecutor’s Office is not a proper defendant and was

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subject to dismissal whether it was named as a defendant in April

2011 or June 2012. Additionally, the tort claims notice did not

give plaintiffs or counsel any indication of the names of the

Camden County Prosecutor’s Office investigators involved. 

Indeed, the notice stated that the identities of the officers

involved were “unknown.”

Rivera died in the City of Camden in an incident not 

involving Camden City police, but rather a New Jersey state

trooper and two Camden County Prosecutor’s Office investigators. 

Recognizing that they did not know the names of the officers

involved in Rivera’s death, plaintiffs preserved their place as

defendants by naming them “John Doe” until their true names were

discovered. Once their initial document requests were received

and the names of the officers involved were revealed, plaintiffs

amended their complaint. The fictitious party practice rule

“does not require exhaustion of every possible avenue of

discovery” before a plaintiff can be found to have exercised due

diligence in ascertaining the true identity of a defendant. 

Davis v. Egbert, 2010 WL 99113, 4 (D.N.J. 2010) (citing DeRienzo,

357 F.3d at 356). Accordingly, plaintiffs did enough in this

case to meet their due diligence obligation.

Finally, the third requirement of the application of the

fictitious party practice rule, and “a crucial factor,” Claypotch

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v. Heller, Inc., 823 A.2d 844, 848 (N.J. Super. Ct. App. Div.

2003), is whether the defendants will be prejudiced by the delay

in adding them to the case. A newly named party suffers some

prejudice by being exposed to potential liability, but “the New

Jersey courts focus on the loss of evidence/witnesses and

impairment of the ability to defend.” Williams v. Hurlings, 2011

WL 3890976, *5 (D.N.J. 2011). Factors considered in determining

whether a defendant is prejudiced by the delay in filing the

amendment include “destruction or alteration of evidence after

the initial discovery process, frustration of attempts at

subsequent examination, or witness unavailability or memory lapse

due to delay.” DeRienzo, 357 F.3d at 356. 

Ultimately, “even though a defendant suffers some prejudice

merely by the fact that it is exposed to potential liability for

a lawsuit after the statute of limitations has run, absent

evidence that the lapse of time has resulted in a loss of

evidence, impairment of ability to defend, or advantage to

plaintiffs, justice impels strongly towards affording the

plaintiffs their day in court on the merits of their claim.” 

Claypotch, 823 A.2d at 850 (citations and quotation omitted).

In this case, the Camden County defendants have not argued

that they are prejudiced by plaintiffs’ delay in adding them as

defendants. Other than having to defend their conduct and

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potentially face individual liability, they have not expressed

that the delay has caused a loss of evidence or witnesses, or

otherwise impaired their ability to defend themselves against

plaintiffs’ claims. In the absence of prejudice, reliance or 8

unjustifiable delay, “[j]ustice impels strongly towards affording

the plaintiffs their day in court on the merits of their claim.” 

Viviano, 503 A.2d at 302.

Thus, because (1) plaintiffs properly pleaded fictitious

party defendants in their original complaint that was filed

before the expiration of the statute of limitations, (2) they

have demonstrated sufficient due diligence in ascertaining the

true names of the Camden County defendants, and (3) no prejudice

to defendants has been shown, plaintiffs’ claims against DiNunzio

and Longo, in their individual capacities, are not barred by the

statute of limitations, and their motion to dismiss on this basis

must be denied.

Although the tort claim notice may be construed as a factor that 8

weighs against plaintiffs’ due diligence, it also could be

construed to weigh against prejudice to the Camden County

defendants because the Camden County Prosecutor’s Office

acknowledged receipt of the notice regarding a claim against it

for Rivera’s death. Of course, this does not evidence that

DiNunzio and Longo received notice of their potential liability

for Rivera’s death, but it is not too much of a stretch to

presume that the officers involved in an incident resulting in a

suspect’s death would generate litigation. 

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2. Whether plaintiffs’ claims against the Camden County

defendants should be dismissed for improper service

Defendants DiNunzio and Longo argue that plaintiffs’ third

amended complaint should be dismissed because plaintiffs did not

properly serve them. Defendants argue that the rules require

that plaintiffs personally serve them with the complaint, but

plaintiffs only effected service on “Angie Slane,” who was the

receptionist at the Camden County Prosecutor’s Office, and who

was not an authorized agent for service. Because plaintiffs have

never properly served them, and service was due by October 25,

2012, the complaint should be dismissed. 

In response, plaintiffs show an affidavit of service by the

process server, who represents that Ms. Slane was authorized to

accept service, and that the third amended complaint and

summonses were successfully served on DiNunzio and Longo on July

11, 2012. To the extent that service is deemed insufficient,

plaintiffs request that leave be afforded to them to allow

defense counsel to accept service on DiNunzio and Longo’s behalf,

or to enable them to re-serve the complaint properly.

Proper service is an essential step in establishing a

district court's personal jurisdiction over the defendants.

Chiang v. U.S. Small Business Admin., 331 Fed. Appx. 113, 115,

(3d Cir. 2009). The Federal Rules of Civil Procedure provide

that a party may be served by “following state law for serving a

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summons” or by (1) “delivering a copy of the summons and of the

complaint to the individual personally,” (2) “leaving a copy of

each at the individual’s dwelling,” or (3) “delivering a copy of

each to an agent authorized by appointment or by law to receive

service.” Fed. R. Civ. P. 4(e). New Jersey’s service rules

provide that service shall be personally served: “Upon a

competent individual of the age of 14 or over, by delivering a

copy of the summons and complaint to the individual personally,

or by leaving a copy thereof at the individual's dwelling place .

. . , or by delivering a copy thereof to a person authorized by

appointment or by law to receive service of process on the

individual's behalf.” N.J. Ct. R. 4:4-4(a)(1). 

The Federal Rules require that a plaintiff must serve the

summons and complaint upon a defendant within 120 days of filing

the complaint, but 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. But if the plaintiff shows good cause

for the failure, the court must extend the time for service for

an appropriate period.” Fed. R. Civ. P. 4(m). 

This Circuit has equated good cause with the concept of

excusable neglect. Chiang, 331 Fed. Appx. at 115 (citing

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Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir.

1995)). To show good cause, a plaintiff must be able to show

“[1] good faith on the part of the party seeking an enlargement

and [2] some reasonable basis for noncompliance within the time

specified in the rules.” Spence v. LaHood, 2012 WL 2076838, 4

(D.N.J. 2012) (quoting MCI Telecomms. Corp., 71 F.3d at 1097)

(other citations omitted). In seeking to establish good cause,

courts may also consider (1) the reasonableness of plaintiff's

efforts to serve, (2) the prejudicial impact that lack of timely

service has had on the defendant, and (3) whether the plaintiff

moved for an enlargement of the time to serve. Id. (citation

omitted).

To the extent that plaintiffs’ service of process was

deficient because “Angie Slane” was not an authorized agent to

accept service on DiNunzio and Longo’s behalf, and because

plaintiffs did not serve them personally or at their homes, the

Court finds that plaintiffs did not properly serve defendants

within 120 days of filing their third amended complaint. The

Court also finds, however, that good cause exists, based on the

factors listed above, for that failure. In so finding, Rule 4(m)

requires that plaintiffs be afforded a reasonable time to

properly serve defendants. Accordingly, defendants’ motion to

dismiss plaintiffs’ complaint for improper service will be

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denied, and plaintiffs are directed to serve defendants in

accordance with the rules within 20 days.9

CONCLUSION

For the reasons expressed above, plaintiffs’ claims against

the Camden County Prosecutor’s Office, Thomas DiNunzio in his

official capacity, and Peter Longo in his official capacity,

shall be dismissed. Plaintiffs claims against DiNunzio and Longo

in their individual capacities may proceed once they have been

properly served.

Date: April 29, 2013 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

If plaintiffs’ third amended complaint were dismissed against 9

DiNunzio and Longo for improper service of process, it would be

dismissed without prejudice. At that point, plaintiffs could

then file a motion for leave to add DiNunzio and Longo as

defendants, either under the fictitious party practice rule since

the third amended complaint still contains “John Doe” defendant

placeholders, or pursuant to Rule 15(c). At least with regard to

the fictitious party practice rule, the case would end up in the

same procedural posture as it stands now, as long as plaintiffs

then properly served the complaint. Thus, a dismissal for

improper service would be without any practical effect, other

than to further delay the case. Second, the Court notes that as

an alternative to personally serving DiNunzio and Longo,

plaintiffs may follow N.J. Ct. R. 4:4-4(c) for optional mailed

service, or request that defendants waive service pursuant to

Fed. R. Civ. P. 4(d).

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