NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JERMAINE DUNBAR, et al.,

 Plaintiffs,

 v.

NATIONAL RAILROAD PASSENGER CORP. 

d/b/a AMTRAK, et al.,

 Defendants.

 CIVIL ACTION NO. 10-3924 (MLC)

 O P I N I O N

COOPER, District Judge

The plaintiffs have brought the action against, inter alia, 

the defendants NBK Holdings LLC (“NBK”), Willow No Inc. (“Willow”), 

the so-called “Amtrak Defendants” -- i.e., National Railroad 

Passenger Corp. d/b/a Amtrak and Frederick D. Hill -- and the 

fictitious defendants, “John Does 1-40” and “ABC Corp. 

1-20 and 22-30”. (See dkt. entry no. 35, 2d Am. Compl.)1

 

1 The action, insofar as it was brought against the other 

defendants, was earlier dismissed without prejudice. (See dkt. 

entry no. 47, 10-13-11 Order (dismissing the action insofar as it 

was brought against Angelo Pacillo, Mary Pacillo, and the entity 

pleaded as Joyce Kilmer Associates, LLC); dkt. entry no. 61, 9-26-

12 Stipulation of Dismissal (dismissing the action insofar as it 

was brought against H&G Contractors Incorporated); dkt. entry no. 

63, 11-28-12 Stipulation of Dismissal (dismissing the action 

insofar as it was brought against Charles W. Amos); dkt. entry no. 

68, 3-6-13 Stipulation of Dismissal (dismissing the action insofar 

as it was brought against the County of Middlesex); dkt. entry no. 

71, 3-22-13 Stipulation of Dismissal (dismissing the action insofar 

as it was brought against the Township of New Brunswick); dkt. 

entry no. 73, 4-12-13 Order (dismissing the action insofar as it 

was brought against the State of New Jersey).)

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I. NBK AND WILLOW

A. Federal Rule of Civil Procedure 4(m)

The Second Amended Complaint was filed on May 26, 2011. (See

2d Am. Compl.) It was not accompanied by a certificate of service, 

and no certificate of service was later filed. The plaintiffs have 

thus prevented the Court from ascertaining whether the Second 

Amended Complaint was served on NBK and Willow.2

“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 insofar as it is asserted

against NBK and Willow unless the plaintiffs establish 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).

B. Local Civil Rule 41.1(a)

It appears from the Court’s sua sponte review of the docket 

that the action has been pending, insofar as it was brought against 

 

2 It appears, by contrast, that the Second Amended Complaint 

was served on the Amtrak Defendants. The Amtrak Defendants have 

answered the Second Amended Complaint. (See dkt. entry no. 39, 

Amtrak Defs.’ Answer & Crossclaims.)

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both NBK and Willow, for more than 120 days without the plaintiffs 

having prosecuted the action. The plaintiffs have not, through the 

documents already appearing on the docket, explained the apparent 

lack of prosecution.

The Court will thus dismiss the Second Amended Complaint 

insofar as it was brought against both NBK and Willow unless the 

plaintiffs take steps to prosecute the action against NBK and 

Willow. 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 McCann v. Unum Provident, No. 

11-3241, 2013 WL 396182, at *3 (D.N.J. Jan. 31, 2013) (citation 

omitted) (“Given the vital purpose that such rules serve, litigants 

ignore them at their peril.”).

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C. The Plaintiffs’ Response

The plaintiffs, if intending to proceed against NBK and 

Willow, must directly respond to this Order by electronically 

filing a separate letter or brief on the docket. The plaintiffs 

may not merely file proof of service upon NBK and Willow, as that 

will not be tantamount to compliance with this Opinion, the Federal 

Rules of Civil Procedure, or the Local Civil Rules. 

 

3 The Court will, if necessary, balance the Poulis factors. 

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

Cir. 1984).

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II. THE FICTITIOUS DEFENDANTS

The parties were earlier ordered to complete fact discovery in 

the action by August 15, 2012. (See dkt. entry no. 56, 6-7-12 

Order.) That deadline passed nearly ten months ago. Nonetheless, 

the plaintiffs have failed to name the Fictitious Defendants.

“The case law is clear that fictitious defendants must 

eventually be dismissed, if discovery yields no identities.” 

Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998) (citation omitted) 

(internal quotation marks omitted); see also Sheetz v. Morning 

Call, Inc., 747 F.Supp. 1515, 1534-35 (E.D. Pa. 1990), aff’d on 

other grounds, 946 F.2d 202 (3d Cir. 1991). Because the plaintiffs 

have failed to name the Fictitious Defendants, the Court will 

dismiss those defendants from the action. 

III. CONCLUSION

The Court, for good cause appearing: (1) will dismiss the 

Fictitious Defendants from the action; and (2) intends to dismiss 

the Second Amended Complaint insofar as it is asserted against NBK 

and Willow unless good cause is otherwise shown. The Court will 

enter a separate Order and Judgment.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: June 10, 2013

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