[Doc. No. 25]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

RAFAEL FONTANEZ,

 Plaintiff,

v.

UNITED STATES OF AMERICA and 

FEDERAL BUREAU OF PRISONS,

 Defendants.

Civil No. 11-2573 (RMB/AMD)

MEMORANDUM OPINION AND ORDER

Presently before the Court is the motion of pro se

Plaintiff, Rafael Fontanez, for an extension of time within 

which to submit an affidavit of merit and for an order finding 

an affidavit of merit to be unnecessary in this action. (See

Notice of Motion [Doc. No. 25], 1). The Court considers whether

the nature of Plaintiff’s claims require Plaintiff to file an 

affidavit of merit, and if so, whether Plaintiff has 

demonstrated circumstances sufficient to permit the filing of an 

affidavit of merit beyond the statutorily-prescribed time 

period. For the reasons that follow, the Court grants 

Plaintiff’s motion for an extension of time to file an affidavit 

of merit.

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In this action, pro se Plaintiff, formerly an inmate 

at FCI Fort Dix, 1 generally alleges that, during a prison 

softball game on July 12, 2009, he sustained an injury, which 

caused “instantaneous” swelling, “intense pain[,] and limited 

Plaintiff’s ability to “move” his arm. (Second Amended Complaint 

[Doc. No. 9], ¶ 19.) Plaintiff alleges that the Health Services 

Unit at FCI Fort Dix provided medical care to Plaintiff, but 

originally diagnosed and treated the injury as a fracture, 

rather than a broken bone (id. at ¶ 37), and denied Plaintiff’s

initial requests to be seen by an orthopedic specialist. (Id. at 

¶ 39.) Notwithstanding the original diagnosis, Plaintiff alleges 

that he suffered from a broken and displaced ulnar, which 

ultimately required corrective surgeries, and has inhibited the

“normal use” and “range of motion” of Plaintiff’s right arm and 

wrist. (Id. at ¶¶ 43-49, 89.) Plaintiff generally asserts that 

the Health Services Unit, and its various physicians, mid-level 

practitioners, and registered nurses, provided medically 

negligent treatment, and seeks monetary damages. (Id. at ¶¶ 86-

92.) 

On May 5, 2011, Plaintiff submitted the initial 

complaint in this action, together with an application to 

1 On December 17, 2013, Plaintiff submitted a notice of address 

change, which indicated that he would shortly be released from 

FCI Fort Dix. (See Notice of Change of Address [Doc. No. 36], 

1.)

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proceed in forma pauperis. (See Complaint Received [Doc. No. 

1].) On July 12, 2011, the District Court granted Plaintiff’s 

application to proceed in forma pauperis, but dismissed 

Plaintiff’s claims with prejudice, instead granting Plaintiff 

the right to file an amended complaint with respect to certain 

claims asserted against Abigail Lopez, M.D., Vincent Elias, and 

Christine Burton. (See Order [Doc. No. 3], July 12, 2011, 3.) 

In accordance with the District Court’s Order, Plaintiff filed 

an amended complaint on April 9, 2012, reasserting prior 

allegations, in part, but also setting forth new substantive 

assertions. (See generally Amended Complaint [Doc. No. 9].) By 

Order dated November 20, 2012, the District Court dismissed 

Plaintiff’s claims against certain individuals, but permitted 

Plaintiff’s claims under the Federal Tort Claims Act to proceed

and added the United States of America as a party Defendant. 

(See Order [Doc. No. 11], Nov. 20, 2012, 2.) Defendants then 

answered Plaintiff’s amended complaint on June 11, 2013. (See

Answer to Amended Complaint [Doc. No. 19].) 

On July 12, 2013, Plaintiff filed his first motion for 

an extension of time to file an affidavit of merit. (See Motion 

for Extension of Time to File an Affidavit of Merit [Doc. No. 

21].) At that time, the sixty-day period within which to obtain 

an affidavit of merit would have expired on August 9, 2013. 

(Id. at ¶ 4.) Defendants did not object to the motion and the 

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Court accordingly granted the motion, extending the time within 

which to file an affidavit to October 9, 2013, the statutory

limit under New Jersey’s affidavit of merit statute. (See Order 

[Doc. No. 24], July 22, 2013, 1.) Plaintiff filed the pending 

motion on October 24, 2013, seeking a determination that the

nature of the allegations and persons involved exempt Plaintiff 

from the affidavit of merit requirement, and alternatively,

requesting an extension of time to November 8, 2013 to file the 

requisite affidavit. (See Notice of Motion [Doc. No. 25], 1; see

also Plaintiff’s Affirmation in Support of Motion for Extension 

of Time, Out of Time, and an Order Holding that an Affidavit of 

Merit is Unnecessary [Doc. No. 25).) Defendants have opposed any 

extension of time, and cross-moved for summary judgment on the 

basis of Plaintiff’s failure to provide a timely affidavit of 

merit. (See Memorandum of Law in Support of the United States of 

America’s Opposition to Plaintiff’s Second Motion for Extension 

of Time to File an Affidavit of Merit and Defendant’s CrossMotion for Summary Judgment Dismissal (hereinafter, “Defs.’ 

Opp’n) [Doc. No. 29], 1-2.) On November 22, 2013, the District 

Court denied Defendants’ cross-motion without prejudice, pending 

resolution of the present motion. (See Text Order [Doc. No. 

35].)

As set forth supra, the District Court permitted 

Plaintiff’s claims under the Federal Torts Claim Act 

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(hereinafter, the “FTCA”) to proceed passed sua sponte

dismissal. (See generally Order [Doc. No. 11], Nov. 20, 2012.) 

The FTCA generally “subjects the United States to tort liability 

for negligence[.]” Reo v. U.S. Postal Serv., 98 F.3d 73, 75 (3d 

Cir. 1996) (citing 28 U.S.C. §§ 1346(b), 2674). Specifically, 

under the FTCA, the United States may be liable for injuries 

caused by the “negligent or wrongful act or omission of any 

employee of the Government while acting within the scope of his 

office or employment.” 28 U.S.C. § 1346(b)(1). However, state 

law governs claims under the FTCA. See Staub v. U.S., No. 08-

2061, 2010 WL 743926, at *2 (D.N.J. Mar. 3, 2010) (citing Reo, 

98 F.3d at 75) (noting the applicability of state law). Because 

Plaintiff alleges injuries which occurred in New Jersey, New 

Jersey tort law, including the affidavit of merit statute

(hereinafter, the “affidavit of merit statute”), N.J.S.A. 

2A:53A-26, et seq., applies. 

“In any action for damages for personal injuries” 

resulting “from an alleged act of malpractice or negligence by a 

licensed person in his profession or occupation,” the New Jersey 

affidavit of merit statute requires the plaintiff to provide “an 

affidavit of an appropriate licensed person” concerning whether 

the disputed treatment “fell [below] acceptable professional or 

occupational standards or treatment practices.” N.J.S.A. 2A:53A27. The affidavit of merit statute therefore requires 

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“plaintiffs to make a threshold showing” of merit, Vitale v. 

Carrier Clinic, Incorporated, 409 F. App’x 532, 533 (3d Cir. 

2010) (citation omitted), in order “‘to dispose of meritless 

malpractice claims early in the litigation’” and “‘to allow 

meritorious claims to move forward unhindered.’” Snyder v. 

Pascack Valley Hosp., 303 F.3d 271, 274 (3d Cir. 2002) (quoting 

Burns v. Belafsky, 766 A.2d 1095, 1099 (N.J. 2001)). 

Plaintiff asserts that an affidavit of merit need not 

be filed because Plaintiff’s allegations do not concern a 

“licensed physician.” (Plaintiff’s Affirmation in Support of 

Motion for Extension of Time, Out of Time, and an Order holding 

that an Affidavit of Merit is Unnecessary (hereinafter, “Pl.’s 

Br.”) [Doc. No. 25], ¶¶ 22-24.) Plaintiff’s allegations concern

treatment provided by the Health Services Unit (hereinafter, 

“HSU”) at FCI Fort Dix, and primarily relate to the alleged 

malpractice of HSU employees, Christine Burton, a registered 

nurse, and Vincent Elias, a mid-level practitioner or 

physician’s assistant. (Pl.’s Br. [Doc. No. 25], ¶¶ 22-23; see

also Defs.’ Opp’n [Doc. No. 29], 7-8.) The affidavit of merit 

statute, by its very terms, applies only to certain claims 

against “licensed person[s] in his [or her] profession or 

occupation[.]” N.J.S.A. 2A:53A-27. However, as is evident from 

the statutory text, and delineated in N.J.S.A. 2A:53A-26, the 

definition of “licensed persons” is not strictly confined to 

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licensed physicians, but instead, expressly encapsulates 

attorneys, physicians, registered nurses, and a “health care 

facility[.]” N.J.S.A. 2A:53A-26. As noted by Defendants (Defs.’ 

Opp’n [Doc. No. 29], 8), FCI Fort Dix’s HSU constitutes a 

“‘licensed person’” and “‘health care facility.’” McLoyd v. 

U.S., No. 04-605, 2006 WL 2135837, at *3 (D.N.J. July 27, 2006) 

(finding that “the Health Services Unit at FCI-Fairton falls 

under the statutory definition of a ‘licensed person’ and 

‘health care facility’”). Consequently, Plaintiff’s complaint 

concerns alleged acts of negligence by “licensed persons[,]” and 

claims to which the affidavit of merit statute apply. See

N.J.S.A. 2A:53A-27.

The affidavit of merit statute requires that the

affidavit be filed within sixty days of the answer, but permits 

an extension of time “not to exceed [sixty] days” for “good 

cause[.]” Id. Failure to file a timely affidavit of merit 

generally “requires dismissal of the action with prejudice.” 

Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. 

WithumSmith Brown, P.C., 692 F.3d 283, 305 (3d Cir. 2012); see

also N.J.S.A. 2A:53A-29 (setting forth the consequence for a 

plaintiff’s failure to provide an affidavit of merit). However,

“four limited exceptions[,]” where applicable, excuse a 

plaintiff’s failure to comply with the affidavit of merit 

statute. Nuveen, 692 F.3d at 305. The limited exceptions are: 

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“(i) a statutory exception regarding lack of information; (ii) a 

‘common knowledge’ exception; (iii)” an exception predicated 

upon “substantial compliance with the affidavit-of-merit 

requirement;” and (iv) “‘extraordinary circumstances’ that 

warrant equitable relief.” Id. (citations omitted).

As set forth supra, Plaintiff filed the pending motion 

on October 24, 2013, after the expiration of the October 9, 2013

statutory deadline to file an affidavit of merit. (See Notice of 

Motion [Doc. No. 25].) Therefore, absent an applicable 

exception, Plaintiff’s failure to file a timely affidavit of 

merit “requires dismissal[.]” Nuveen, 692 F.3d at 305. The 

pending motion contains no indication that Plaintiff lacks the 

requisite medical information to obtain and file an affidavit of 

merit. See N.J.S.A. 2A:53A-28 (describing the statutory lack of 

information exception). Nor does Plaintiff assert that he

provided Defendants with an “independent[,]” though technically 

deficient, “verification of the validity” of Plaintiff’s claims, 

as required by the substantial compliance exception. Nuveen, 692 

F.3d at 308 (finding the substantial compliance exception 

inapplicable where the plaintiff failed to provide an 

independent verification of the merits of the claims). Rather, 

Plaintiff argues that certain circumstances excuse Plaintiff’s

failure to provide a timely affidavit and, alternatively, that 

Plaintiff need not submit an affidavit of merit in accordance 

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with the “common knowledge” exception. (Pl.’s Br. [Doc. No. 25], 

¶¶ 9-33.) 

The common knowledge exception only applies “where 

‘jurors’ common knowledge’” suffices “‘to enable [the jurors], 

using ordinary understanding and experience, to determine a 

defendant’s negligence without the benefit of the specialized 

knowledge of experts.’” Hubbard v. Reed, 774 A.2d 495, 499 (N.J. 

2001) (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 734 

A.2d 778 (1999)). Consequently, the negligence must be “‘readily 

apparent to anyone of average intelligence and ordinary 

experience[,]’” Kelly v. Berlin, 692 A.2d 552, 557 (N.J. Super. 

Ct. App. Div. 1997) (citations omitted), and not “‘technical 

matters peculiarly within the knowledge of medical’” 

professionals. Lee v. Park, No. 12-7437, 2013 WL 5770680, at *4 

(D.N.J. Oct. 23, 2013) (quoting Sanzari v. Rosenfeld, 167 A.2d 

625 (1961)). Plaintiff delineates a series of purported errors, 

spanning multiple days and concerning actions by multiple 

parties. (See Pl.’s Br. [Doc. No. 25], ¶¶ 28-31; see also

Amended Complaint [Doc. No. 9].) By way of example, Plaintiff 

alleges that “a physician twice misread test results” and/or xrays, “ultimately [leading] to unnecessary surgery.” (Pl.’s Br. 

[Doc. No. 25], ¶ 32.) Plaintiff, however, has proffered no 

support for his assertion that the claims in this action 

establish “a series of careless and obvious errors[,]” (id. at ¶ 

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33), which would not require specialized knowledge of experts. 

See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 579-80 

(3d Cir. 2003) (noting that the common knowledge exception only

applies where “[n]o special expertise or expert testimony is 

needed to show, at the outset of a case, that the claim is not 

frivolous”). This exception narrowly applies to “readily 

apparent” negligence such as where a defendant dentist 

negligently extracted the wrong tooth, see Steinke v. Bell, 107 

A.2d 825 (N.J. Super. Ct. App. Div. 1954); where a defendant 

physician failed to inform the plaintiff that plaintiff’s x-rays 

clearly depicted a needle in plaintiff’s chest, see Tramutola v. 

Bortone, 288 A.2d 863 (N.J. Super. Ct. App. Div. 1972); or where 

plaintiff suffered burns while unconscious during surgery. See

Magner v. Beth Israel Hosp., 295 A.2d 363 (N.J. Super. Ct. App. 

Div. 1972). The purported negligence of the Defendants in this 

action does not fit within this category. 2 The Court therefore 

2 Plaintiff asserts that, because Defendants failed to provide a 

response to Plaintiff’s requests for admissions, “the Court 

should consider [the allegedly admitted facts] in [the] 

adjudication of this motion.” (Pl.’s Br. [Doc. No. 25], ¶ 40.) 

However, it is clear that requests for admission serve “‘to 

expedite the trial by establishing certain material facts as 

true, thus reducing the number of issues for trial.’” Glover v. 

Udren, No. 08-990, 2013 WL 23155, at *2 (W.D. Pa. Jan. 2, 2013) 

(quoting Duchesneau v. Cornell Univ., No. 08-4856, 2010 WL 

4117753, at *2 (E.D. Pa. Oct. 19, 2010). As noted by Defendants, 

the Court has not conducted an initial scheduling conference

concerning discovery deadlines, nor entered a scheduling order. 

(See Defs.’ Opp’n [Doc. No. 29], 16.) Consequently, the Court 

finds Plaintiff’s requests for admissions premature. See Glover, 

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rejects Plaintiff’s assertion concerning the application of the

common knowledge exception. (See Pl.’s Br. [Doc. No. 25], ¶ 25.) 

The Court now considers whether Plaintiff’s submission 

demonstrates “‘extraordinary circumstances’ that warrant 

equitable relief[.]” Nuveen, 692 F.3d at 305. “[E]xtraordinary 

circumstances” may justify an additional extension of time, 

provided that the circumstances do not evince “‘mere 

carelessness or lack of proper diligence.’” Chamberlain v. 

Giampapa, 210 F.3d 154, 162 (3d Cir. 2000) (quoting Hartsfield 

v. Fantini, 695 A.2d 259, 263 (N.J. 1997)). “[T]he circumstances 

must be ‘exceptional and compelling[,]’” and the Court must

determine that Plaintiff “has provided [an] adequate excuse for 

[his] failure to comply with the [affidavit of merit] 

statute[.]” Chamberlain, 210 F.3d at 162. However, courts “‘have 

yet to define the full scope of extraordinary circumstances as 

an equitable remedy for failure to comply with the [affidavit of 

merit] statute[.]’” Paragon Contractors, Inc. v. Peachtree 

Condo. Ass’n, 997 A.2d 982, 985 (N.J. 2010) (citations omitted). 

Courts have engaged in a fact-specific analysis to determine 

whether the plaintiff demonstrates extraordinary circumstances.

Nuveen, 692 F.3d at 309. In the context of attorney conduct, 

2013 WL 23155, at *2 (finding plaintiff’s requests for 

admissions “premature” at an early stage in the litigation); see

also Perry v. City of Phila., 915 F. Supp. 719, 720 (E.D. Pa. 

1996) (finding plaintiff’s requests for admission premature). 

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courts ascertain whether the failure to provide a timely 

affidavit arose out of circumstances beyond or within counsel’s

control: the first supporting an extension, with the second 

militating against an extension. Compare Tischler v. Watts, 827 

A.2d 1036, 1037-38 (N.J. 2003) (finding extraordinary 

circumstances where plaintiff’s counsel underwent aggressive 

radiation and chemotherapy treatments during the statutory 

affidavit of merit submission period), with Hartsfield, 695 A.2d 

at 264 (finding “an attorney’s failure to supervise staff or 

heavy workload” to be insufficient to satisfy the 

“‘extraordinary circumstances’ requirement”). Here, the failure 

to file a timely affidavit of merit rests solely upon pro se

Plaintiff. Courts in the pro se context have considered whether 

the failure to comply with the filing deadline resulted from

“‘carelessness, lack of circumspection, lack of diligence, [] 

ignorance of the law[,]” or failure to seek legal advice. 

Marcantonio v. Hundertmark, No. A-2102-04T5, 2005 WL 3663634, at 

*4 (N.J. Super. Ct. App. Div. Jan. 23, 2007) (citations 

omitted); see also Kant v. Seton Hall Univ., No. 00-5204, 2009 

WL 2905610, at *2 (D.N.J. Sept. 9, 2009) (quoting Taylor v. 

Plousis, 101 F. Supp. 2d 255, 270 (D.N.J. 2000) (citation 

omitted) (same)). None of these reasons alone, however, suffice 

to “‘excuse failure to meet the filing deadline.’” Kant, 2009 WL 

2905610, at *2 (quoting Taylor, 101 F. Supp. 2d at 270). 

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Therefore, pro se status does not, without more, establish 

extraordinary circumstances. See Kant, 2009 WL 2905610, at *2 

(“A pro se litigant’s failure to file an affidavit of merit 

within the proper time period following the filing of an Answer 

does not constitute extraordinary circumstances.”).

In Plaintiff’s first motion for an extension of time, 

Plaintiff asserted that his incarceration and “limited 

resources” required Plaintiff to “rely on family” in 

Massachusetts for assistance in obtaining an affidavit of merit. 

(Affirmation in Support of Motion for Extension of Time for 

Affidavit of Merit [Doc. No. 21], ¶ 6.) In connection with the 

pending motion, Plaintiff asserts that, notwithstanding 

significant efforts, he could not retain a medical provider in 

time to comply with the Court’s October 9, 2013 deadline. 

(Pl.’s Br. [Doc. No. 25], ¶¶ 10-11.) Plaintiff represents that 

he has now obtained, after the deadline, “the services of a 

licensed physician, Donald Goldman, MD” to prepare an affidavit 

of merit and has obtained an attorney prepared to represent 

Plaintiff upon filing of the affidavit—both of which are 

contingent, however, on this Court granting an extension of 

time. (Id. at ¶¶ 15-16; see also Motion for Extension of Time to 

File an Affidavit of Merit [Doc. No. 25], 22-23.) In support of 

these assertions, Plaintiff appended email correspondence to the 

pending motion to substantiate that he has now obtained a

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medical provider willing and able to provide an affidavit of 

merit, if provided additional time, and an attorney. (See Motion 

for Extension of Time to File an Affidavit of Merit [Doc. No. 

25], 22-23.) The email correspondence also indicates that 

Plaintiff’s mother began to correspond with potential medical 

providers as of August 19, 2013 in an effort to obtain a timely 

affidavit.3 (Id. at 9.) 

Accordingly, the Court does not construe Plaintiff’s 

position to be one of carelessness, lack of circumspection, or 

lack of diligence, as alleged by Defendants. (Defs.’ Opp’n [Doc. 

No. 29], 16.) Nor does Plaintiff’s proffer demonstrate the 

ignorance of the law or simply a failure to act. See

Marcantonio, 2005 WL 3663634, at *4 (affirming the dismissal of 

pro se plaintiff’s complaint where plaintiff made no attempt to 

obtain an affidavit of merit). Consequently, Plaintiff presents 

circumstances unique from those in which courts uniformly reject 

3 Defendants take issue with the emails appended to Plaintiff’s 

pending motion and assert that such “emails constitute hearsay 

and hearsay within hearsay.” (Defs.’ Opp’n [Doc. No. 29], 15.) 

The Court has reviewed Plaintiff’s affirmation filed in 

connection with the pending motion and rejects Defendants’ 

assertion that the emails should not be considered. (See

generally Plaintiff’s Affirmation in Support of Motion for 

Extension of Time, Out of Time, and an Order Holding that an 

Affidavit of Merit is Unnecessary [Doc. No. 25], 2-7 on the 

docket.) Defendants further assert that Plaintiff’s mother did 

not contact the lawyer or the physician retained to provide an 

affidavit of merit “until late September 2013 or early October 

2013.” (Id.) Defendants therefore assert that Plaintiff’s motion 

should be denied. (Id.) The Court rejects this argument for the 

reasons set forth infra.

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the application of the extraordinary circumstances exception. In 

Mathis v. Pomerentze, No. 08-6129, 2012 WL 6152126 (D.N.J. Dec. 

11, 2012), for example, the court rejected the application of 

the extraordinary circumstances exception due, in part, to 

plaintiff’s failure to make any efforts to comply with the 

affidavit of merit statute, nor to demonstrate any other 

circumstances that “prevented him from submitting an Affidavit 

of Merit.” Id. at *3 n.7. Similarly, in Stuyvesant v. United 

States, No. 05-5254, 2007 WL 1931292 (D.N.J. June 29, 2007), the 

court denied plaintiff’s motion for an extension of the time 

within which to submit an affidavit of merit (and dismissed 

plaintiff’s claims), where plaintiff proffered only inadvertence 

and an assertion that his “New York counsel” required “time to 

review the case files.” Id. at *4. 

Plaintiff’s present position in this action does not 

squarely present circumstances which are “simply insufficient to 

satisfy the ‘extraordinary circumstances’ standard[.]” Timmons 

v. DeGuzman, Nos. A-4927-10T4, A-5196-10T4, A-5159-10T4, A-5968-

10T4, A-5195-10T4, 2012 WL 2618519, at *6 (N.J. Super. Ct. App. 

Div. July 6, 2012) (noting that late filings of an affidavit of 

merit “may be accepted because of extraordinary 

circumstances[,]” but that “‘carelessness, lack of 

circumspection, or lack of diligence’” fail to constitute such 

circumstances) (citation omitted); see also Hyman Zamft &

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Manard, L.L.C. v. Cornell, 707 A.2d 1068, 1071 (N.J. Super. App. 

Div. 1998) (noting that “[c]arelessness, lack of circumspection, 

or lack of diligence” are not “extraordinary circumstances” 

sufficient to relax the requirements of the affidavit of merit 

statute). Nor, however, do Plaintiff’s circumstances fall

clearly within the confines of the limited body of law 

addressing the extraordinary circumstances exception. In 

Tischler v. Watts, 827 A.3d 1036 (N.J. 2003), for example, the 

New Jersey Supreme Court found that counsel for plaintiff’s

“aggressive radiation and chemotherapy treatments” precluded her 

from “an opportunity to comply with the statutory” affidavit of 

merit requirements. Id. at 1039. Consequently, the New Jersey 

Supreme Court found the circumstances “compelling[,]” 

particularly in light of the seemingly “meritorious” nature of 

plaintiff’s suit, and reversed the lower court’s dismissal of 

plaintiff’s action with prejudice. Id.; see also Barreiro v. 

Morais, 723 A.2d 1244, 1249 (N.J. Super. Ct. App. Div. 1999) 

(noting that a physician's indecipherable medical documents 

would promote the finding of an extraordinary circumstance if 

they had a “substantial bearing on [a physician's] preparation 

of the affidavit and prevented him from doing so in a timely 

fashion”). Similarly, in Perez v. Turner, No. 11-6833, 2013 WL 

3216147 (D.N.J. June 25, 2013), the court found circumstances 

sufficient “to excuse [p]laintiff’s failure to timely file an 

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Affidavit of Merit[,]” in light of the four month delay (by no 

fault of plaintiff) in the appointment of pro bono counsel. Id.

at *5, *5 n.4. 

In this case, Plaintiff proffers efforts to obtain a 

timely affidavit during the statutory period, and the 

representation that he now possesses the actual ability to 

comply with the affidavit of merit statute, provided he receives 

additional time. (See Motion for Extension of Time to File an 

Affidavit of Merit [Doc. No. 25], 23.) The Court also notes the 

limitations previously posed by Plaintiff’s incarceration, 

including the need to rely on third-party assistance. (See, 

e.g., (Affirmation in Support of Motion for Extension of Time 

for Affidavit of Merit [Doc. No. 21], ¶ 6; Letter [Doc. No. 34], 

1.) Though Plaintiff’s recent release may have removed these 

barriers, in part, his incarceration during the period within 

which to submit a timely affidavit undoubtedly frustrated 

Plaintiff’s ability to timely acquire an affidavit of merit. 

Consequently, Plaintiff presents circumstances neither clearly 

favoring, nor disfavoring, application of the extraordinary 

circumstances exception. Rather, the Court must determine where 

Plaintiff’s present position falls on the spectrum of 

circumstances considered in connection with the extraordinary 

circumstances exception. See Paragon, 997 A.2d at 985 (noting 

that courts “‘have yet to define the full scope of extraordinary 

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circumstances as an equitable remedy for failure to comply with 

the [affidavit of merit] statute’”) (citation omitted). The 

Court makes this determination, however, guided by the policy of 

New Jersey courts “‘favoring the disposition of cases on their 

merits[]’” Clare v. Senft, No. A-1745-12T2, 2014 WL 684240, at 

*4 (N.J. Super. Ct. App. Div. Feb. 24, 2014) (citation omitted), 

and the New Jersey Supreme Court’s indication that the 

“extraordinary circumstances” exception aims to “temper the 

draconian results of an inflexible application of the statute” 

by granting certain latitude to non-compliant plaintiffs.

Ferreira v. Rancocas Orthopedic Assocs., 836 A.2d 779, 783 (N.J. 

2003) (noting that, “[t]he Affidavit of Merit statute was 

intended to flush out insubstantial and meritless claims[,]” but 

“was not intended to encourage gamesmanship or a slavish 

adherence to form over substance”). In light of these policies

and the nature of the claims set forth in Plaintiff’s complaint,

the Court concludes that Plaintiff’s documented efforts during 

his incarceration suffice to warrant an extension of time. See

Abraham v. Rothkopf, No. 07-2254, 2008 WL 3413850, at *4 (D.N.J. 

Aug. 8, 2008) (granting plaintiff an extension of time where 

plaintiff behaved “diligently” and demonstrated “a desire to 

fulfill the requirements of the affidavit [of] merit statute[,]” 

rather than “merely ‘sleep[] on his rights’”); see also N.H. 

Ins. Co. v. Diller, 678 F. Supp. 2d 288, 313 n. 30 (Dec. 23, 

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2009) (finding dismissal with prejudice to “be unfair and 

contrary to the purpose of the Affidavit of Merit statute” in 

light of defendant’s delay in raising the affidavit of merit 

issue; and therefore, dismissing plaintiff’s complaint without 

prejudice, in order to afford plaintiff sixty (60) additional

days” to serve an affidavit of merit and “to foster resolution 

on the merits” of plaintiff’s “potentially meritorious claim”). 

Though neither Plaintiff’s former incarceration nor pro se

status suffice to warrant an extension, standing alone, the 

cumulative impact of Plaintiff’s circumstances—particularly when 

viewed through the lens of Plaintiff’s efforts during the sixtyday extension—support a limited extension of time. Accordingly, 

the Court shall grant Plaintiff an extension of time within 

which to file an affidavit of merit. In light of the Court’s 

ruling, the Court shall grant a thirty-day day extension from 

the date of entry of this Order.

Consequently, for the reasons set forth herein, and 

for good cause shown:

IT IS on this 30th day of May 2014,

ORDERED that Plaintiff’s motion for an extension of 

time [Doc. No. 25] shall be, and hereby is, GRANTED IN PART and 

DENIED IN PART; and it is further

ORDERED that Plaintiff shall file the affidavit of 

merit pursuant to N.J.S.A. 2A:53A-27 no later than thirty (30) 

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days from the date of entry of this Order. Plaintiff is on 

notice that no further extensions of time shall be granted, and 

that failure to file an affidavit of merit may result in the 

dismissal of Plaintiff’s complaint with prejudice.

s/ Ann Marie Donio 

ANN MARIE DONIO

UNITED STATES MAGISTRATE JUDGE

cc: Hon. Renée Marie Bumb

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