                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2005

Brennan v. Kulick
Precedential or Non-Precedential: Precedential

Docket No. 04-1866




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Recommended Citation
"Brennan v. Kulick" (2005). 2005 Decisions. Paper 1097.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1097


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                                        PRECEDENTIAL

           UNITED STATES COURT OF APPEAL
               FOR THE THIRD CIRCUIT


                         No. 04-1866


                  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


        On Appeal from the United States District Court
                  for the District of New Jersey
                  (D.C. Civil No. 01-cv-03837)
         District Judge: Hon. Joseph A. Greenaway, Jr.


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

  BEFORE: BARRY, AMBRO and COWEN, Circuit Judges
                     (Filed: May 13, 2005)

Mark E. Ruffolo, Esq.
145 North Franklin Turnpike
Suite 209
Ramsey, NJ 07446

Counsel for Appellant

Rosaria A. Suriano, Esq.
Podvey, Sachs, Meanor, Catenacci,
 Hildner & Cocoziello
One Riverfront Plaza
The Legal Center, 8 th Floor
Newark, NJ 07102

Counsel for Appellees


                           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

                                2
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


       1
        These orders include a January 31, 2002 order compelling
discovery, a September 23, 2002 discovery order directing Brennan
to comply with discovery, a November 12, 2002 amended
discovery order instructing Brennan to provide discovery by
specified dates, and a December 19, 2002 case management order.
       2
        Brennan had initially secured counsel in October, 2002. In
early January, 2003, former counsel withdrew from representation
and Brennan again proceeded pro se until present counsel entered
an appearance on February 25, 2003.

                                3
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.



       3
        The full text of this order states: “[T]he order of January
27, 2003 dismissing the above matter without prejudice shall
remain in full force and effect; however, plaintiff may renew its
application to vacate at a later time.” (App. at 61.)

                                 4
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

                                 5
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 Court squared this holding with
those cases which held that a dismissal without prejudice does
not toll a statute of limitations. Significantly, the Court stated
that the “finality of the dismissal” was the determinative
element, as the rule has only been applied in cases where there
was a final order of dismissal. Id. We thus concluded, in dicta,
that the limitations period is tolled by the filing of a complaint
which is later dismissed without prejudice if the order of
dismissal grants leave to amend within a time certain. In such
cases, the expiration of the limitations period does not convert
the otherwise non-final order of dismissal without prejudice into
a final appealable order. Rather, the order becomes final and
appealable only when the time for amendment has expired or the
plaintiff declares its intention to stand on the complaint.

        This distinction drawn between final and conditional
orders of dismissal in this context is sound and persuasive. An
order merely dismissing a complaint without prejudice could
result in a significant period of delay prior to the bringing of a
new action. In contrast, conditional, otherwise non-final orders
(like the ones here and in Cardio-Medical), set forth a time limit
within which the deficiency must be corrected before the
complaint is to be dismissed with or without prejudice. The
conditions specified in the order prevent a plaintiff from
indefinitely extending the limitations period. In addition, a rule

                                 6
characterizing conditional orders of dismissal without prejudice
as final and appealable orders would create the risk of multiple
litigation: plaintiffs may choose to simultaneously file a direct
appeal from the order to the Court of Appeals while also
continuing to litigate in district court by attempting to comply
with the conditions outlined in the order. Accordingly, we hold
that when a complaint is filed within the statute of limitations
but is subsequently dismissed without prejudice in an order
containing conditions for reinstatement within a specified time
period, the statute of limitations is tolled provided that the
plaintiff meets those conditions.

       The circumstances presented in this case parallel those in
Cardio-Medical. As in Cardio-Medical, the January 27, 2003
order of dismissal without prejudice contained explicit
conditions providing for reinstatement of the complaint upon
Brennan’s satisfaction of certain discovery obligations. Neither
the parties nor the District Court treated Brennan’s complaint as
not existing or contemplated that the January 27, 2003 order was
final and appealable. Instead, the District Court retained control
over the case; discovery continued; the District Court issued
additional orders (including the May 8, 2003 order that
continued the January 27, 2003 order and explicitly allowed
Brennan to renew his motion to vacate the dismissal without
prejudice at a later time); and the District Court otherwise
retained jurisdiction over the case as it proceeded. Under these
circumstances, we refuse to indulge the myth that Brennan’s
complaint never existed, as the actions taken by the District
Court and the parties following the dismissal without prejudice
prove otherwise.

       The March 1, 2004 order, from which Brennan appeals,
effectively terminated Brennan’s lawsuit solely on the basis of
discovery violations–a particularly harsh result under the
circumstances. In dismissing the complaint without prejudice on
January 27, 2003, the District Court expressly provided Brennan
with additional time to comply with his discovery obligations
and an opportunity to reinstate his complaint. Ordinarily, that
order would ripen into a final order upon expiration of the fixed
time period if Brennan made no attempt to satisfy the stated

                                7
conditions. See, e.g., Berke v. Bloch, 242 F.3d 131, 135 (3d Cir.
2001). The problem in this case, however, is that although
Brennan’s present counsel took steps to meet the conditions of
the January 27, 2003 order, the District Court never ruled upon
whether those conditions had been satisfied. This is apparent
from the order of May 8, 2003, which continued the original
order in response to Defendants’ request that the complaint not
be reinstated until Brennan completed all discovery obligations.
If Brennan did satisfy the January 27, 2003 order, then in light of
our analysis, it never ripened into a final, appealable order.

                                III.

       The District Court erred in its order of March 1, 2004, in
dismissing the complaint with prejudice without considering
Brennan’s renewed motion to vacate the dismissal without
prejudice on the grounds that he had complied with the
conditions of dismissal. Accordingly, we will reverse the March
1, 2004 order of dismissal with prejudice and will remand this
case to the District Court for it to consider whether Brennan has
complied with the conditions of the January 27, 2003 order of
dismissal without prejudice. If he has complied, the complaint is
to be reinstated.




                                 8
