                                                          NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                                No. 11-3591
                                ___________


             ROXANNE MURRAY; HEATHER WHITCRAFT;
               MARIA SWIDERSKI; JESSICA RODMAN,
                                           Appellants

                                      v.

                         WALGREEN COMPANY

                        _______________________

               On Appeal from the United States District Court
                      for the District of New Jersey
                    D.C. Civil Action No. 10-cv-3333
                     (Honorable Jerome B. Simandle)
                             ______________

                            Argued June 4, 2012

     Before: SCIRICA, GREENAWAY, JR. and NYGAARD, Circuit Judges.

                            (Filed: July 19, 2012)

DAVID M. KOLLER, ESQUIRE (ARGUED)
2043 Locust Street, Suite 1B
Philadelphia, Pennsylvania 19103
      Attorney for Appellants

BARBARA A. O'CONNELL, ESQUIRE (ARGUED)
Sweeney & Sheehan
1515 Market Street, 19th Floor
Philadelphia, Pennsylvania 19102
      Attorney for Appellee


                                      1
                                    _________________

                                OPINION OF THE COURT
                                   _________________

SCIRICA, Circuit Judge.

       Roxanne Murray, Heather Whitcraft, Maria Swiderski, and Jessica Rodman

(“Plaintiffs”) appeal a judgment of the District Court denying their motion for relief

under Fed. R. Civ. P. 60(b)(1). We will affirm.

                                               I

       On June 30, 2010, after receiving the right to sue following an EEOC

administrative proceeding, Plaintiffs filed a complaint in the District of New Jersey

against Walgreen Company (“Walgreen”) alleging violations of Title VII, 42 U.S.C. §

2000e et seq. On November 22, 2010, with the case pending for more than 120 days, the

District Court issued a Notice of Call for Dismissal Pursuant to Local Rule 41.1(a) for

failure to prosecute, soliciting an affidavit setting forth the good faith efforts to prosecute

the action. Plaintiffs’ counsel filed an affidavit stating she was in the process of

amending the complaint to include additional state-law claims against additional

defendants, and that she anticipated filing an amended complaint within sixty days. On

December 15, 2010, the District Court held that the affidavit did not establish good cause

for the dormancy of the case and failure to serve the defendant, and dismissed the case

without prejudice under D.N.J. Civ. R. 41.1(a) and Fed. R. Civ. P. 4(m).

       On December 27, 2010, Plaintiffs filed a motion to vacate the dismissal under Fed.

R. Civ. P. 60(b)(1) and D.N.J. Civ. R. 41.1(a), and Walgreen, having received a copy of


                                               2
the stale original complaint on January 25, 2011, opposed the motion. Exercising

jurisdiction over the motion because the statute of limitations on Plaintiffs’ claims had

expired, the District Court denied Plaintiffs’ motion, holding that they had not established

excusable neglect. The Court also noted that, even if it found that the Plaintiffs had

exercised good faith, it would hold that the totality of the circumstances did not establish

excusable neglect. Plaintiffs timely appealed.1

                                              II

       We review a district court’s denial of a Rule 60(b) motion for abuse of discretion.

Brown v. Phila. Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003). “An abuse of discretion

may be found when the district court’s decision rests upon a clearly erroneous finding of

fact, an errant conclusion of law or an improper application of law to fact.” Reform Party

of Allegheny Cnty. v. Allegheny Cnty. Dept. of Elections, 174 F.3d 305, 311 (3d Cir.

1999) (internal quotation marks and citation omitted).

                                             III

       Fed. R. Civ. P. 60(b)(1) grants a district court discretion to relieve a party from a

final judgment or order in instances of “mistake, inadvertence, surprise, or excusable

neglect.” Petitioners contend the District Court abused its discretion by holding they

failed to satisfy the standard for excusable neglect.

       In determining excusable neglect, a court must consider four factors: (1) prejudice

to the adverse party; (2) length of the delay and its potential impact on the judicial


1
  The District Court exercised jurisdiction under 28 U.S.C. §§ 1331, 1343. We exercise
jurisdiction under 28 U.S.C. § 1291.
                                              3
proceedings; (3) reason for the delay, including whether it was within the reasonable

control of the movant; and (4) whether the movant acted in good faith. In re Cendant

Corp. Prides Litig., 311 F.3d 298, 300 (3d Cir. 2002). The District Court did not abuse

its discretion denying 60(b)(1) relief. The District Court correctly identified the four

Pioneer factors, Pioneer Investment Services v. Brunswisk Assoc., 507 U.S. 380, 395

(1993), and found that (1) Walgreen would be prejudiced by defending against Plaintiffs’

time-barred claims, (2) the 168-day delay at issue was “unreasonably protracted,” (3)

Plaintiffs had exclusive control over the delay, and (4) Plaintiffs had not acted in good

faith because they made a strategic decision in declining to serve Walgreens with the

complaint.2 We detect no errors warranting reversal.

       Substantially for the reasons set forth in the District Court’s opinion, we will

affirm the judgment of the court.




2
 Specifically, the court found the affidavit filed in response to the court’s Notice of Call
for Dismissal on November 22, 2010, demonstrated “an absence of good faith under
Pioneer, 507 U.S. [380,] 395.”
                                              4
