407 F.3d 603 (3rd Cir. 2005), 04-1866, Brennan v. Kulick

Docket Nº:04-1866.
Citation:407 F.3d 603
Party Name: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
Case Date:May 13, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 603

407 F.3d 603 (3rd Cir. 2005)

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

May 13, 2005

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

Page 604

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.

Page 605

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

Page 606

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...

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