ROBERT J. TRIFFIN v. UNITED PARCEL SERVICE, INC., a/k/a UPS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5174-04T55174-04T5

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

UNITED PARCEL SERVICE, INC.,

a/k/a UPS,

Defendant-Respondent,

and

MICHAEL W. KEEBAUGH,

CHRISTOPHER McRAE, and

JONATHAN HERNANDEZ,

Defendants.

____________________________________________________________

 

Argued May 17, 2006 - Decided June 9, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Mercer

County, DC-2083-05.

Robert J. Triffin, appellant, argued the

cause pro se.

Joy Harmon Sperling argued the cause for

respondent (Pitney Hardin, attorneys;

Ms. Sperling and Steven A. Muhlstock, on

the brief).

PER CURIAM

Plaintiff Robert J. Triffin contends that the trial court erred in dismissing his complaint with prejudice. After reviewing the record and applicable law, we reverse and remand for further proceedings.

Plaintiff's complaint seeks to enforce dishonored checks that he purchased from a check cashing company. To prevail, plaintiff must ultimately demonstrate two dispositive facts: (1) that the check cashing company was a holder in due course at the time it paid on the instrument; and (2) that there was a valid assignment of the holder in due course status to plaintiff. Triffin v. Quality Urban Hous. Partners, 352 N.J. Super. 538, 542 (App. Div. 2002); Triffin v. Cigna Ins. Co., 297 N.J. Super. 199, 201-02 (App. Div. 1997). The trial court, apparently recognizing the need for a valid assignment agreement, dismissed plaintiff's original complaint on March 23, 2004, but the dismissal order allowed plaintiff to refile his claims "after obtaining valid assignments."

After plaintiff's initial complaint was dismissed in Mercer County, he refiled in Camden County. Plaintiff's second complaint was dismissed without prejudice on March 22, 2005. That order provided that plaintiff could "re-file (sic) these claims in Mercer County with the original ink signature of Mickey J. Durkin [on an assignment agreement] and in accordance with the March 23, 2004 order of [the court]." When plaintiff filed his third complaint in Mercer County without the original assignment agreement, UPS filed a "notice of motion to dismiss complaint in lieu of answer," and the trial court granted defendant's motion. The order of May 27, 2005, which dismissed plaintiff's third complaint with prejudice, contains the following statement:

The court reviewed the [c]omplaint filed by [p]laintiff for the third time now (i.e., twice in Mercer County and one time in between apparently in Camden County), and this third [c]omplaint fails to follow the requirements of the prior [c]ourt [o]rder to include signed originals of the particular [a]ssignment. Further, the [c]ourt finds [p]laintiff's tactics and procedures to be harassing and unprofessional, and at best subject to sanctions in the nature of attorney[']s fees which would far exceed the claim of plaintiff on the unpaid checks. In addition, the dismissal of this case against United Parcel Service does not leave plaintiff without a remedy; plaintiff can always pursue the individual payees. Defendant, United Parcel Service should not have to defend itself three times in the same case because of sloppy and harassing litigation tactics.

In its motion to dismiss, UPS argued that because Triffin had refiled his complaint without the original assignment agreement signed by Mr. Durkin, "Triffin's complaint is not legally viable and should be dismissed with prejudice for failing to state a claim." Of course, trial courts must approach applications for dismissals under R. 4:6-2(e) "with great caution," and such motions "should be granted in only the rarest of instances." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771-72 (1989). The trial court should have taken a "generous and hospitable approach" when reviewing the adequacy of plaintiff's complaint, and there was no need for the trial court to be concerned about the ability of the plaintiff to ultimately prove the allegations in the complaint. Id. at 746. The test for determining the adequacy of a complaint is whether "a cause of action is suggested by the facts," Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). We conclude that plaintiff's complaint passed this test.

From our reading of the trial court's statement of reasons, it appears that plaintiff's complaint may have been dismissed because plaintiff failed to comply with the order of March 23, 2004, (which required plaintiff to refile "after obtaining valid assignments"), and the order of March 22, 2005, (which allowed plaintiff to refile "with the original ink signature of Mickey J. Durkin" on the assignment agreement). The reasons for requiring plaintiff to submit his trial proofs with his complaint are not clear from the record, however, even if there were good reasons for the entry of the orders, the dismissal of plaintiff's complaint with prejudice was an abuse of discretion.

A trial court has an array of options, including the imposition of reasonable expenses and attorney's fees pursuant to R. 4:23-2, when there has been a violation of a pretrial order. "In assessing the appropriate sanction for the violation of one of its orders, the court must consider a number of factors, including whether the plaintiff acted willfully and whether the defendant suffered harm, and if so, to what degree." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005). "Because the dismissal of a plaintiff's cause of action with prejudice is a drastic remedy, it should be invoked sparingly . . . ." Ibid. In a case such as this, where there has been absolutely no showing that plaintiff's actions have in any way impaired defendant's ability to present a defense on the merits, the ultimate sanction--dismissal with prejudice--is too drastic. See id. at 118-19 (noting that plaintiff's defiance of a court order to testify at trial was grounds for dismissal with prejudice where the defiance "prejudiced [defendant's] right to put on a defense").

The order under review is reversed, and the matter is remanded for further proceedings consistent with this opinion.

 

(continued)

(continued)

5

A-5174-04T5

June 9, 2006