AMANDA CUMMINGS v. BRIAN S. OLSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

AMANDA CUMMINGS,

Plaintiff-Appellant,

v.

BRIAN S. OLSON, KELLY'S TAVERN,

KELLY'S TAVERN, INC., LEGGETTS

SAND BAR, INSHORE ATLANTIC,

INC., BAR ANTICIPATION, and

ALEATORY, INC.,

Defendants-Respondents,

and

ALEATORY, INC. d/b/a BAR

ANTICIPATION, LEGGETTS SAND

BAR and INSHORE ATLANTIC, INC.,

Third-Party Plaintiffs,

v.

BRIAN S. OLSON,

Third-Party Defendant,

and

BRIAN S. OLSON,

Third-Party Defendant/

Fourth-Party Plaintiff,

v.

KELLY'S TAVERN, KELLY'S TAVERN,

INC., BAR ANTICIPATION, and

ALEATORY, INC.,

Fourth-Party Defendants.

___________________________________

July 22, 2015

Argued April 22, 2015 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5174-11.

Jacqueline DeCarlo argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Ms. DeCarlo and Justin Lee Klein, of counsel and on the briefs).

Steven H. Rosenfeld (Havkins, Rosenfeld, Ritzert and Varriale, L.L.P.) of the New York bar, admitted pro hac vice, argued the cause for respondent Inshore Atlantic, Inc. d/b/a Leggetts Sand Bar s/h/a Leggetts Sand Bar and Inshore Atlantic, Inc. (Tara Fappiano (Havkins, Rosenfeld, Ritzert & Varriale, L.L.P.), attorney; Ms. Fappiano, on the brief).

Frank M. Falcone argued the cause for respondent Aleatory, Inc. d/b/a Bar Anticipation (Carroll McNulty & Kull, L.L.C., attorneys; Joseph P. McNulty and Mr. Falcone, of counsel and on the brief).

Lewis M. Markowitz argued the cause for respondent Brian S. Olson (Gutterman, Markowitz & Klinger, L.L.P., attorneys; Mr. Markowitz, of counsel and on the brief).

PER CURIAM

On May 4, 2011, plaintiff Amanda Cummings was a passenger in a car driven by defendant, Brian S. Olson. Plaintiff fractured her neck and was otherwise seriously injured when Olson's car struck an unoccupied parked vehicle. At the time he struck the parked vehicle, Olson's blood alcohol content (BAC) was .19, more than twice the presumptive level of intoxication under N.J.S.A. 39:4-50.

Plaintiff filed suit against Olson under common law negligence and under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7 (known commonly as the "Dram Shop Act"), and also named as defendants Kelly's Tavern, Bar Anticipation, and Leggetts Sand Bar (collectively "Dram Shop defendants"), alleging they were "licensed alcoholic beverage servers" under N.J.S.A. 2A:22A-3. Plaintiff sought to recover compensatory damages from the Dram Shop defendants under N.J.S.A. 2A:22A-5(b) alleging they served Olson alcoholic beverages on the evening of the accident despite Olson being visibly intoxicated.

Plaintiff filed her complaint on November 7, 2011. The Law Division administratively dismissed Olson from the case pursuant to Rule 1:13-7 on May 25, 2012. Olson's attorney attempted to file an answer on his behalf on October 16, 2012, but the Civil Division Manager's Office declined to file the responsive pleading because the complaint against Olson remained dismissed under Rule 1:13-7. As a customary gesture of professional courtesy, Olson's counsel signed a consent order to reinstate the complaint against his client. However, plaintiff's counsel neglected to file the executed consent order. Ultimately, plaintiff's complaint against Olson was never reinstated to the active trial calendar.

The case proceeded thereafter through the discovery phase without the principal, indispensable party. The three Dram Shop defendants filed responsive pleadings. The original discovery end date (DED) was November 8, 2012. The trial court twice extended the DED at the request of the parties, resulting in January 7, 2013 becoming the second extended DED. As a consequence of Bar Anticipation's motion to compel Olson's deposition, the trial court extended the DED a third time to April 8, 2013. When Olson failed to appear for his deposition, the court granted Bar Anticipation's motion to preclude him from testifying at trial.

After the DED finally passed, the three Dram Shop defendants filed motions for summary judgment. All three defendants argued plaintiff could not establish liability against them as matter of law because she had not presented any evidence, including expert testimony, showing Olson was served alcoholic beverages while he was visibly intoxicated on the night of the accident. Plaintiff filed a cross-motion seeking to extend the DED in order to depose Olson. Plaintiff argued that without Olson's deposition, she was unable to present expert testimony. Plaintiff's counsel conceded summary judgment was warranted should the court find insufficient grounds to reopen and extend discovery.

The trial court denied plaintiff's motion, finding she had not established the good cause necessary to extend the discovery end date for a third time. The court also denied plaintiff's subsequent motion for reconsideration and to reinstate her complaint against Olson.

Represented by different counsel, plaintiff now appeals arguing the trial court abused its discretion in granting Bar Anticipation's motion to preclude Olson's testimony at trial, granting the Dram Shop defendants' motions for summary judgment, and denying her motion to reopen and extend discovery. Plaintiff also argues the court erred in denying her subsequent motions for reconsideration and to reinstate her complaint against Olson.

In reviewing a trial court's decision to deny a motion to extend the discovery period under Rule 4:24-1(c), this court "is limited to a determination of whether the trial court mistakenly exercised its discretion[.]" Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 87 (App. Div. 2007) (citation omitted). We are bound to defer to the trial judge's authority to manage the litigation within the procedural framework established by the Supreme Court, mindful that we are not in a position to micro-manage a case or substitute our judgment for the judgment of the trial judge. See Townsend v. Pierre, 221 N.J. 36, 52-53 (2015).1

After reviewing the record before us, we are satisfied Judge Katie A. Gummer properly exercised her discretionary authority in granting defendants' motions for summary judgment and denying plaintiff's belated motions to extend discovery and reinstate her complaint against Olson. It seems clear plaintiff's prior counsel did not take the steps necessary to prepare this case for trial, including filing, on a timely basis, Olson's consent to reinstate the complaint against him or take his deposition.

In multi-defendant cases, a party may seek reinstatement of a complaint administratively dismissed under Rule 1:13-7(a) on a showing of good cause, but only if the motion is filed within ninety days of dismissal. Thereafter, a party must demonstrate exceptional circumstances. Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 383-84 (App. Div. 2011). Here, plaintiff's efforts to reinstate the complaint against Olson were both grossly untimely and do not meet the exceptional circumstances standard of review. We discern no legal basis to interfere with Judge Gummer's well-reasoned decision.2 We affirm substantially for the reasons expressed by Judge Gummer in her oral decisions delivered from the bench.

Affirmed.

1 With respect to the denial of plaintiff's motion seeking to reverse the court's prior order barring Olson from testifying at trial, we note plaintiff did not challenge Bar Anticipation's motion at the time the trial court decided the issue. We thus decline to address that issue here. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 178-79 (App. Div. 1999), aff'd as modified, 164 N.J. 1 (2000).

2 In plaintiff's motion to reopen discovery, plaintiff's prior counsel provided a personal explanation for his inattentiveness. We take no position as to the validity of these claims. We are satisfied, however, that Judge Gummer duly considered counsel's personal issues in reaching the decision we uphold here.