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January 10, 2005.

COMP USA, et al., Defendants.

The opinion of the court was delivered by: KENNETH KARAS, District Judge


This case is before the Court on Plaintiff's motion to vacate an order of dismissal for failure to prosecute. Plaintiff's motion is late in coming and does not provide evidence which meets Plaintiff's burden to obtain relief. Accordingly, after reviewing Plaintiff's submissions, the record, and the applicable law, and for the reasons that follow, Plaintiff's motion is DENIED.

Plaintiff has been represented throughout this case by Richard J. Zeitler, and the Court is disturbed by Mr. Zeitler's conduct in this case. Initially, the Court doubts whether Mr. Zeitler is admitted to practice in this Court and remains in good standing in New Jersey.*fn1 Further, Plaintiff's counsel inexplicably waited approximately two years to move to vacate the dismissal, providing arguments — that there was confusion over an alleged hearing with the Court and that the files related to this case were "mislaid" in counsel's office — which are insufficient to excuse the motion's untimeliness and which only underscore counsel's mishandling of this matter. Finally, the record in this case discloses that Mr. Zeitler has done next to nothing to move this case along since it was filed on April 20, 2001, repeatedly ignoring court orders, deadlines, and telephone inquiries. Indeed, it appears that the Defendants in this matter have yet to be properly served.

  I. Background

  This diversity case arises from injuries Plaintiff allegedly sustained when the ceiling of a Comp USA store in Manhattan collapsed. Plaintiff contends that the collapse, which allegedly occurred on April 4, 1999, was caused by the negligence of Defendant Comp USA and of Defendants Ameribuild Construction Management Inc. and Architectural Assoc., Inc., which allegedly designed and/or constructed the ceiling.

  None of the Defendants has entered an appearance in this case. Plaintiff apparently had difficulty serving Defendants with process until April of this year, and even then the Court doubts that the attempted service was sufficient, as discussed below.

  Plaintiff originally filed this case on April 20, 2001 in the United States District Court for the District of New Jersey. On May 14, 2001, that court transferred this case, sua sponte, to this Court under 28 U.S.C. § 1406 because New Jersey was not a proper venue.

  On January 4, 2002, the Honorable John S. Martin, Jr., United States District Judge, dismissed the case for Plaintiff's failure to prosecute. (See Order signed Jan. 4, 2002.) Judge Martin noted that Plaintiff's counsel did not respond to several deadlines to report on the status of this case, did not return the Court's telephone messages, and did not appear for a hearing on the Court's order to show cause why the case should not be dismissed. (See Orders signed Dec. 20, 2001 & Jan. 4, 2002.)

  Seven months after the case was dismissed, Plaintiff's counsel requested by letter a return date to file a motion to reopen the case. On August 8, 2002, Judge Martin ordered that Plaintiff may file a motion to set aside the dismissal without a return date from the Court, and that the Court would consider the motion upon submission. (See Order signed Aug. 8, 2002.) Nothing was filed for the next 17 months.

  On January 12, 2004, Plaintiff moved to set aside the dismissal. In the papers supporting the motion, Mr. Zeitler first contends that he was "told to be before the Court the Court [sic] on September 13, 2002 for a conference, presumably on the issue of reinstatement." (See Certification of Richard J. Zeitler dated Dec. 31, 2003 ¶ 11 ("Zeitler Cert.").) Mr. Zeitler asserts that William W. Murphy, the attorney he sent to appear at the conference, was
told that the case had been re-assigned to Magistrate Ronald L. Allen. He went to Judge Allen and spoke to his staff. He was told that Judge Allen had not yet received it firm [sic] Judge Martin. The situation was somewhat confused. Mr. Murphy returned to our firm without having conferenced the case.
(Zeitler Cert. ¶ 13.)*fn2 Second, Mr. Zeitler claims that the files related to this matter were "mislaid" in his office for a number of months. (Zeitler Cert. ¶ 14.)

  The Court has difficulty understanding Mr. Zeitler's assertions regarding the alleged conference with Judge Martin. Nothing in the record, including the docket sheet and Judge Martin's Order signed on August 8, 2002, indicates that a conference was scheduled for that date. In fact, Mr. Murphy acknowledges that there was no record that a conference was scheduled, admitting that "[i]nasmuch asthere [sic] was no notice from the Court in the file advising me where [the conference] was to be held, I assumed that it was before Judge John S. Martin." (Attachment L to Zeitler Cert.) More significantly, no one named Ronald L. Allen is a Magistrate Judge of this Court. It is likely, however, that Mr. Zeitler intended to refer to the Honorable Ronald L. Ellis, the Magistrate Judge designated to this case. These befuddlements aside, it is unclear to the Court why an alleged mistake over a supposed conference should have kept Mr. Zeitler from promptly seeking relief from the dismissal. The Court notes that Mr. Zeitler provided no evidence that he took any steps after the conference date, such as the simple and effortless step of calling the Court, to resolve the confusion.

  This matter was reassigned to this Court for all purposes on November 17, 2004.

  II. ...

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