ROBERT WILLIAMS v. W. STANLEY NUNN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0338-08T30338-08T3

ROBERT WILLIAMS,

Plaintiff-Appellant,

v.

W. STANLEY NUNN, SOUTH WOODS

STATE PRISON, and DEPARTMENT

OF CORRECTIONS,

Defendants-Respondents.

____________________________________________________

 

Submitted September 8, 2009 - Decided

Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-833-01.

Childress & Jackson, LLC, attorneys for appellant (Louis W. Childress, Jr., of counsel; Mr. Childress, Jr., and Donald O. Egbuchulam, on the brief).

Anne Milgram, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kathleen M. Bartus, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff Robert Williams appeals from the August 1, 2008 order that denied his motion for reconsideration of a prior order denying his motion to reinstate his complaint against defendants, W. Stanley Nunn, South Woods State Prison, and the Department of Corrections. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

We note initially that plaintiff's notice of appeal and case information statement list only the order denying reconsideration as the subject of this appeal. The original order denying his motion to reinstate the complaint is not listed or appended to those documents. The only transcript plaintiff has supplied is from the hearing that took place on August 1, the date his motion for reconsideration was orally argued.

The failure on plaintiff's part to include in the notice of appeal and case information statement the original order denying his motion to reinstate permits us to limit our review solely to the denial of his motion for reconsideration. Fusco v. Board of Educ. of the City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). That technical failure might be overlooked, however, if "the substantive issues in the case and the basis for the motion judge's ruling on the [motion to reinstate] and [the] reconsideration motion[] [were] the same." Id. at 461.

The June 20 order denying plaintiff's motion to reinstate clearly reflects that Judge Michael Brooke Fisher placed his reasons on the record the same day. Inexplicably, plaintiff has not provided us with a transcript of that decision. During oral arguments on August 1, Judge Fisher noted:

[T]his is a [m]otion for [r]econsideration. I was somewhat surprised that . . . [p]laintiff didn't request oral argument when the first [m]otion was filed.

I ruled on the papers pretty specifically.

However, Judge Fisher's subsequent, thorough recitation of his reasons for originally denying reinstatement, and, thereafter, for denying reconsideration, allows us to treat this particular appeal with indulgence so as to permit a full and complete analysis of the issues.

Plaintiff's complaint, filed pro se on August 2, 2001, alleged that in May 2000, while an inmate at South Woods State Prison, he fell down a stairwell that had been recently mopped by his fellow inmates. He suffered injury as a result, and his complaint sounded in general theories of negligence in defendants' maintenance of the premises. Plaintiff had earlier served a notice of claim upon defendants pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and, though he claims to have served the complaint, there is no proof in the record that defendants received it or that it was properly served.

In any event, in January 2002, apparently in response to a court-initiated notice of intent to dismiss the complaint for lack of prosecution, R. 1:13-7(a), plaintiff contacted the firm of Childress and Jackson to represent him. Alan L. Jackson, the attorney specifically representing plaintiff, passed away on February 13, 2002. The computerized case records of the court reflect that the complaint was administratively dismissed on February 2, 2002, but was reinstated three weeks later upon plaintiff's motion.

On August 31, 2002, the complaint was again dismissed by the court for lack of prosecution. It was reinstated again on January 9, 2004 pursuant to a motion filed by Louis W. Childress, Jr., the surviving partner of the law firm.

On September 9, 2004, Childress filed a request to enter default against defendants, R. 4:43-1, contemporaneously serving defendants via Lawyer's Service. The court records do not reflect that default was ever entered on the docket by the clerk. Plaintiff never requested a proof hearing, nor sought the entry of judgment by default. R. 4:43-2(b). As a result, the complaint was once again dismissed by the court on March 11, 2005 for lack of prosecution.

More than three years later, on May 21, 2008, plaintiff sought reinstatement of the complaint yet again. Plaintiff offered no excuse for the three-year delay in seeking the third reinstatement. Defendants argued that plaintiff failed to demonstrate good cause as required by Rule 1:13-7(a), and further argued that they were prejudiced by the passage of time since potential witnesses may have been lost, and records destroyed. In reply, plaintiff noted that defendants' claim of prejudice lacked specificity, and that plaintiff should not be penalized for lack of diligence by his counsel. Judge Fisher denied plaintiff's motion.

Plaintiff moved for reconsideration. Although plaintiff more fully argued the legal basis for reinstatement, we note that the motion papers failed to raise any facts or procedural events that were not raised by plaintiff's original motion to reinstate. Once again, plaintiff offered no excuse for waiting more than three years to file his motion to reinstate. Defendants argued that the motion for reconsideration should be denied precisely because plaintiff provided no new evidence or authority indicating that the judge had erroneously denied the motion for reinstatement.

Judge Fisher noted that while motions for reinstatement pursuant to Rule 1:13-7 "should be freely granted[,]" "the standard" to grant the relief required that plaintiff demonstrate "good cause[.]" He found that the death of Jackson, in 2002, could not serve as an excuse for plaintiff's delay, which he characterized as "inexplicably too long[.]" He concluded that "the time period here is beyond any reasonable amount of time that the Court could utilize to [impose] a lesser sanction." He denied the motion for reconsideration and this appeal followed.

Rule 4:49-2 requires that a motion for reconsideration "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." (Emphasis added). We have said:

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence[.]

[Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

"Reconsideration cannot be used to expand the record and reargue a motion." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008).

We have carefully reviewed plaintiff's submissions in support of his motion for reconsideration, as well as the argument he presented before Judge Fisher. As already noted, with the exception of a more expansive legal argument, plaintiff presented nothing new, nor did he demonstrate that Judge Fisher had failed to adequately consider controlling precedent. We cannot conclude that the judge mistakenly exercised his discretion in denying the motion. We therefore affirm.

To the extent this appeal seeks review of the original denial of defendant's motion for reinstatement, we agree with Judge Fisher that plaintiff failed to demonstrate good cause.

When the motion for reinstatement was decided in June 2008, Rule 1:13-7(a) provided that reinstatement should be permitted "only on motion for good cause shown." The Rule was subsequently amended, effective September 1, 2008, to provide that "[t]he motion shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted only on a showing of exceptional circumstances." We consider the appeal under the Rule as it existed at the time Judge Fisher made his decision. In short, did plaintiff demonstrate good cause for the reinstatement of his complaint?

As he did below, plaintiff relies upon our holding in Ghandi v. Cespedes, 390 N.J. Super. 193, 195 (App. Div. 2007), where we reversed the motion judge's denial of the plaintiff's motion to reinstate a complaint that had been administratively dismissed nearly seventeen months earlier. The administrative dismissal resulted from plaintiff's counsel's inattention to the matter and resulting failure to request the entry of judgment when no answer was timely filed. Id. 390 N.J. Super. at 195. We concluded that motions to reinstate administratively-dismissed complaints "should be viewed with great liberality" due to the "'general disinclination to invoke the ultimate sanction of dismissal where the statute of limitations has run.'" Id. at 197-98 (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 268-69 (App. Div. 1989)).

However, the facts of this case are distinguishable from Ghandi. First, the length of delay in this case was more than three years. Second, in Ghandi, the trial court denied plaintiff's first request to reinstate the complaint. Here, Judge Fisher's denial followed two prior dismissals over three years that were both based upon plaintiff's failure to timely prosecute his complaint. Third, unlike Ghandi, defendants in this case have opposed reinstatement. Although they have not identified specific prejudice that has resulted from plaintiff's delay, and although Judge Fisher did not consider the issue for purposes of his decision, we accept the very real probability that the passage of more than eight years between the date of plaintiff's fall, and the motion to restore, prejudiced defendants.

We fully recognize that "'[g]ood cause' is an amorphous term[,] . . . 'difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied.'" Id. at 196 (quoting Del. Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002)). However, in this case, plaintiff has provided no cause for the three-year delay in filing his motion to reinstate his complaint. We cannot conclude that Judge Fisher mistakenly exercised his discretion in denying the motion.

 
Affirmed.

Indeed, in a subsequent certification supporting plaintiff's last motion for reinstatement, his counsel noted that due to the death of his law partner, "service was inadvertently not effectuated."

(continued)

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9

A-0338-08T3

September 28, 2009