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
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.
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
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,
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.