Brennan v. Kulick

• Decision Date: 13 May 2005
• Docket Number: No. 04-1866.,04-1866.
• Parties: William J. BRENNAN, Appellant v. Eugene KULICK, individually and as Commissioner of Little Falls Fire Department and as Committeeman for the Township of Little Falls; Janice Sandri, individually and as Deputy Commissioner of the Little Falls Fire Department and as Committeewoman for the Township of Little Falls; Rick Ricciardelli, individually and as committeeman for the Township of Little Falls; Terry Ryan, individually and as a Committeeman for the Township of Little Falls; Christopher Parany, individually and as Committeeman for the Township of Little Falls; William Wilk, individually and as Business Administrator or Clerk of the Township of Little Falls; James Segreto, individually and as Head of the Legal Department of the Township of Little Falls; Township of Little Falls
• Court: U.S. Court of Appeals — Third Circuit

407 F.3d 603

William J. BRENNAN, Appellant v. Eugene KULICK, individually and as Commissioner of Little Falls Fire Department and as Committeeman for the Township of Little Falls; Janice Sandri, individually and as Deputy Commissioner of the Little Falls Fire Department and as Committeewoman for the Township of Little Falls; Rick Ricciardelli, individually and as committeeman for the Township of Little Falls; Terry Ryan, individually and as a Committeeman for the Township of Little Falls; Christopher Parany, individually and as Committeeman for the Township of Little Falls; William Wilk, individually and as Business Administrator or Clerk of the Township of Little Falls; James Segreto, individually and as Head of the Legal Department of the Township of Little Falls; Township of Little Falls

No. 04-1866.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) April 5, 2005.

Filed: May 13, 2005.

Mark E. Ruffolo, Esq., Ramsey, NJ, Counsel for Appellant.

Rosaria A. Suriano, Esq., Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello, Newark, NJ, Counsel for Appellees.

Before: BARRY, AMBRO and COWEN, Circuit Judges.

OPINION

COWEN, Circuit Judge.

William J. Brennan appeals the March 1, 2004 order of the District Court denying his renewed motion to vacate the District Court's previous order dated January 27, 2003, and dismissing his complaint with prejudice. We have jurisdiction pursuant to 28 U.S.C. § 1291. We will reverse and remand.

I.

This case has a long, tortured, and protracted procedural history. On August 13, 2001, Brennan, proceeding pro se, filed a complaint alleging violations of 42 U.S.C. §§ 1983 and 1985, the First, Fourth, and Fourteenth Amendments of the United States Constitution, and various state laws.

The District Court promulgated a scheduling order on November 26, 2001. Defendants repeatedly complained that Plaintiff was not complying with his discovery obligations. In response, the District Court entered four separate discovery-related orders.¹ The last of these orders was dated December 19, 2002, and sanctioned Brennan for his refusal to follow the previous orders. Paragraph 1 of this order instructed Brennan to pay a monetary sanction by December 23, 2002.

Brennan failed to pay the sanction on time. The District Court therefore dismissed his complaint without prejudice by order dated January 27, 2003. The order states in relevant part:

1. That plaintiff's Complaint shall be and the same is hereby dismissed without prejudice because of plaintiff's failure to comply with paragraph (1) of the December 19, 2002 Case Management Order;

2. That if plaintiff fails to comply with the December 19, 2002 Case Management Order and if the Complaint is not reinstated within 30 days, the Complaint shall be dismissed with prejudice upon application of defendants;

(App. at 51.)

Brennan retained present counsel on February 25, 2003.² On that date, Brennan's counsel filed a motion to vacate the January 27, 2003 dismissal without prejudice, or, in the alternative, to enlarge the time to reply. In addition, on the previous day counsel sent by overnight mail an attorney trust check to Defendants' counsel in satisfaction of the monetary sanction. Defendants' response requested that the District Court condition any reinstatement of Brennan's complaint (which had been dismissed without prejudice) on his compliance with all discovery.

On May 8, 2003, the District Court entered its next order, which did not vacate the January 27, 2003 dismissal without prejudice but did allow plaintiff to "renew [his] application to vacate at a later time."³ (Id. at 61.) On July 31, 2003, Brennan filed another motion to vacate the January 27, 2003 dismissal without prejudice, or, in the alternative, to receive an enlargement of time. A flurry of motions followed, and on March 1, 2004, the District Court granted Defendants' motion to dismiss the complaint with prejudice. The District Court found that the statute of limitations had expired before it dismissed the complaint without prejudice on January 27, 2003. Relying on the general principle that a statute of limitations is not tolled by the filing of a complaint which is dismissed without prejudice, the District Court reasoned that expiration of the statute of limitations precluded Brennan from rectifying the discovery deficiencies underlying the January 27, 2003 dismissal without prejudice. As such, the January 27, 2003 order constituted, in the District Court's view, a final and appealable order. This appeal followed.

II.

We exercise plenary review over the District Court's decision to dismiss with prejudice Brennan's complaint on statute of limitations grounds. Ordinarily, an order dismissing a complaint without prejudice is not a final and appealable order. Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir.2002). This principle, however, does not apply if the statute of limitations has run by the time the court orders dismissal without prejudice. A "statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice," as "the original complaint is treated as if it never existed." Cardio-Medical Assocs. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir.1983). Therefore, the dismissal of a complaint without prejudice after the statute of limitations has run forecloses the plaintiff's ability to remedy the deficiency underlying the dismissal and refile the complaint. Ahmed, 297 F.3d at 207. In these circumstances, the order dismissing the complaint without prejudice is considered a final and appealable order. Id.

The parties do not dispute that, absent tolling, the statute of limitations on Brennan's claims had expired prior to the January 27, 2003 order dismissing his complaint without prejudice. The District Court concluded that Brennan could not remedy the underlying discovery defect giving rise to the January 27, 2003 order, and thus on March 1, 2004, dismissed Brennan's complaint with prejudice and denied his renewed motion to vacate the January 27, 2003 order.

There is a notable distinction, however, between the instant case and those cases in which courts have found that the dismissal of a complaint nullified the original complaint. As noted, Cardio-Medical acknowledged the general rule that a complaint that is subsequently dismissed without prejudice is treated for statute of limitations purposes as if it never existed. Nevertheless, our Court held that an amended complaint, filed after Sherman Act claims were dismissed without prejudice because of deficiencies in the jurisdictional allegations, could not include a jury demand when no such demand was presented in the original complaint. Id. at 77. We distinguished that case from those in which the general rule had been applied, on the bases that the district court's order dismissing the Sherman Act claims gave leave for the plaintiffs to amend the jurisdictional allegations and refile an amended complaint within sixty days, and that plaintiffs had in fact amended and refiled their complaint as within the delineated time period. Id. We further noted that orders which dismiss a complaint without prejudice with leave to amend are not deemed final until either the time for amendment has expired or the plaintiff has announced its intention to stand on its complaint. Until then, the dismissal "`is neither final nor appealable because the deficiency can be corrected by the plaintiff without affecting the cause of action.'" Id. (quoting Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir.1976) (per curiam)). Buttressing our holding that the conditional order of dismissal without prejudice was not final were the procedures that followed when the new complaint was filed: "The amended complaint asserted identical claims under the Sherman Act. It was given the same docket number as the original complaint, and it was assigned to the same district judge. No new filing fees were paid, and no new summons was served on the defendants." Id. Thus, the plaintiffs remained bound to their waiver of jury trial on the basis of the original pleadings. Id.

The Cardio-Medical Cour...