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ROMAND v. ZIMMERMAN

March 31, 1995

DENISE ANNETTE ROMAND, Plaintiff, against MARK ZIMMERMAN, as Personnel Director of Saratoga Hospital; SARATOGA HOSPITAL; DAVID ANDERSEN, as Chief Executive Officer of Saratoga Hospital, Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 I. BACKGROUND

 Plaintiff alleges violations of the Americans With Disabilities Act (ADA) and the Rehabilitation Act of 1973 by defendants. She filed a timely complaint with the Equal Employment Opportunity Commission (EEOC) and received a right to sue letter on October 28, 1993. She filed this suit alleging the above claims on January 31, 1994 and filed for in forma pauperis status (IFP). Her IFP request was denied and plaintiff was directed to file the $ 120 filing fee within 45 days.

 In an order dated June 23, 1994, the court dismissed plaintiff's action for failure to file the $ 120 fee within 45 days. Plaintiff now seeks reconsideration of the dismissal of her suit for failure to pay the filing fee. Also, defendants now move for dismissal of the suit pursuant to Fed.R.Civ.P. 12(b)(1) and (5) should the court reconsider the dismissal for failure to pay the filing fee.

 II. DISCUSSION

 A. Motion for Reconsideration

 A court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice. Larsen v. Ortega, 816 F. Supp. 97, 114 (D. Conn. 1992). It is in light of this standard that the court undertakes reconsideration of its June 23, 1994 order and the related June 28, 1994 judgment dismissing this action.

 In this case, plaintiff filed a timely letter-motion for reconsideration through her newly acquired attorney on July 8, 1994. In this motion plaintiff's attorney noted that plaintiff actually had responded to the March 18, 1994 order directing her to file the $ 120 fee. An attached receipt shows that plaintiff paid the filing fee on April 28, 1994, within the 45-day limit provided in the order. Unfortunately, through some error, this payment was not entered by the Clerk of Court until September 29, 1994, thus leading to the June 23, 1994 order and subsequent judgment which dismissed plaintiff's case.

 Due to the obvious error of law and injustice involved, the court now reconsiders its June 23, 1994 order and subsequent judgment of June 28, 1994 and vacates them. Plaintiff's case is hereby reopened. Despite this, the additional considerations below warrant dismissal of much of plaintiff's action.

 Defendants claim that the court lacks subject matter jurisdiction over defendants Andersen and Zimmerman pursuant to Fed.R.Civ.P. 12(b)(1) and lacks jurisdiction over all the defendants due to insufficiency of service of process pursuant to Fed.R.Civ.P. 12(b)(5). Upon a closer reading of defendants' papers it appears that the motion they bring pursuant to Rule 12(b)(1) to dismiss the claims against defendants Andersen and Zimmerman is more properly considered a dismissal motion pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and the court will treat it as such.

 1. Service of Process - Dismissal Motion Pursuant to Rule 12(b)(5)

 a.) Fed.R.Civ.P. 4(m)

 Defendants assert that plaintiff did not serve them with the summons and complaint in this action until after the time limit for service had run. Fed.R.Civ.P. 4(m) states that service of the summons and complaint must be made upon the defendants within 120 days after the filing of the complaint. Local Rule 4.1(b) states that service of process should be completed within 60 days ...


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