Case Information
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ____________________________________
:
Grover Whetstone :
:
Plaintiff, :
: Civil Action 04-5504 (DRD) v. :
: OPINION
The City of East Orange; The East :
Orange Police Department; Officer B.M. :
Wynn, of the East Orange Police :
Department, Individually and Under Color :
of State Law; Officer M.D. Foote, of the :
East Orange Police Department, :
Individually and Under Color of State :
Law; Officer F. Ellis, of the East Orange :
Police Department, Individually and :
Under Color of State Law; Officer J. :
Soto, of the East Orange Police :
Department, Individually and Under :
Color of State Law; Sergeant :
Koundry, of the East Orange Police :
Department, Individually and :
Under Color of State Law; Lieutenant :
Pyczko, of the East Orange Police :
Department, Individually and :
Under Color of State Law; Charles :
Grimes, Chief of Police of the :
East Orange Police Department, :
Individually and Under Color of :
State Law; John and Jane Does 1-50 :
(fictitious names), :
:
Defendants. :
____________________________________:
Appearances by:
Robert L. Tarver, Jr., Esq.
LAW OFFICES OF ROBERT L. TARVER, JR.
66 South Main Street
Toms River, NJ 08757
Attorney for the Plaintiff , Grover Whetstone
Carol A. Ferentz, Esq.
GRIECO, OATES, DEFILIPPO, LLC
81 Northfield Avenue - Suite 205
West Orange, NJ 07052
Attorney for Defendants, City of East Orange and the East Orange Police Department LETTER OPINION
On November 9, 2004, Plaintiff Grover Whetstone (“Whetstone”) filed a complaint against the City of East Orangе, the East Orange Police Department, and several East Orange police officers, including the Chief of Police (defendants are collectively referred to as “East Orange”), alleging civil rights violations under 42 U.S.C. § 1983. Because Whetstone’s action was pending in the court for more than 120 days without proceeding, on August 3, 2006, the Office of the Clerk issued a Notice of Call for Dismissal Pursuant to L. Civ. R. 41.1(a) which, in part, provides that
Civil cases, othеr than bankruptcy matters, which have been pending in the Court for more than 120 days without any рroceedings having been taken therein must be dismissed for lack of prosecution by thе Court (1) on its own motion, or (2) on notice from the Clerk to all parties who have appeared, unless good cause is shown with the filing of an affidavit from counsel of record or the unrepresented party.
By affidavit filed September 8, 2006, counsel for Whetstоne explained that Mr. Whetstone had developed an illness which prevented him for assisting in the prosecution of his action and which hampered him from moving forward in the discovery process. Counsel further explained that he and Mr. Whetstone believed that Whetstone would soon make a recovery sufficient to permit him to assist in prosecution of the action.
In response to a conference call between counsel for East Orange, counsel for Whetstone, and the magistrate judge, East Orange, by fax of September 13, 2006, prayed the court to dismiss Whetstone’s complaint with prеjudice asserting that Whetstone had not previously disclosed the existence of an individual, Tanya Rice, who Whetstone now claimed was witness to the event. East Orange counsel wrote that neither the arrest report of April 23, 2003, the Notice of Claim under Title 59 served July 21, 2003, nor the Rule 26 Disclosures dated November 21, 2005, named Tanya Rice as a witness or a person with discoverable information.
The next day, Whetstone’s counsel alsо faxed a letter to the magistrate judge. Counsel explained that although Mr. Whetstonе had been diagnosed with Alzheimer’s Disease and was still unable to assist in the prosecution of his claim, Whetstone had identified, prior to degeneration of his condition, the additional witness, Tanya Rice, daughter of Mr. Whetstone’s friend, Mary Ann Rice. Counsel requested that this Court enter an order of voluntary dismissal without prejudice to allow counsel time tо locate the witness and marshal evidence.
Although various courts of appеal consider a number of factors in determining whether a dismissal with prejudice is appropriate under Rule 41(b), the New Jersey Court of Appeals [1]
“eschew[s] a listing of factors because of the great variety of situations in which this issue arises,”
and, instead, emphasizes that “dismissal [with prejudice] is a drastic sanction and should be reserved
for thosе cases where there is a clear record of delay or contumaciоus conduct by the plaintiff.” See
Donnelly v. Johns-Manville Sales Corp.,
The Court finds that, under the circumstances, dismissal with prejudice is too harsh a remedy. The interests of justice are better served by the lesser sanction of dismissal without prejudice.
SO ORDERED .
/s/ Dickinson R. Debevoise Dickinson R. Debevoise, U.S.S.D.J.
Dated: October 2, 2006
Notes
[1] See, for instance, Davis v. Williams,