SWISHER, HILLSIDE SPINNING AND STAMPING COMPANY, et al. v. THE LABOR DEPOT, L.L.C., STEPHEN SIGNORILE, ROBERT CRISCUOLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2578-06T5

SWISHER, HILLSIDE SPINNING AND

STAMPING COMPANY, CORRUGATED CARTON COMPANY, AMERICAN COMB CORPORATION, NEW JERSEY WIRE

CLOTH COMPANY, HELLER TRUCK BODY CORPORATION, GREGORY PRESS, JIT MANUFACTURING INCORPORATED, QUALITY INDEXING L.L.C., SWENSON COMPANY INCORPORATED, CONTINENTAL AERO, WIZARD PRINTING CORPORATION, STAR TOBACCO, AUGUSTUS W. SMITH HOME INSPECTION, GARDNER PRECISION TECHNOLOGIES, L.L.C., ROBERT STIEFEL AND SON ROOFING AND SHEET METAL WORKS, MILLBURN CAMERA SHOP,

INTERSTATE OUTDOOR ADVERTISING,

LIVINGSTON CAMERA MART, HANNOCH APPRAISAL COMPANY, IMA PRINTER INCORPORATED d/b/a MINUTEMAN PRESS, ACTION SUBPOENA, PATHFINDER CONSULTING GROUP,

Plaintiffs-Respondents,

v.

THE LABOR DEPOT, L.L.C., STEPHEN

SIGNORILE, ROBERT CRISCUOLO,

Defendants-Appellants.

 

 

Argued December 3, 2007 - Decided

Before Judges S.L. Reisner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-0302-06.

Edward H. Lee argued the cause for appellants (Pitman, Mindas, Grossman, Lee, Bross & Moore, P.C., attorneys; Mr. Lee, of counsel and on the brief).

Philip Elberg argued the cause for respondents (Medvin & Elberg and Blau & Blau, attorneys; Mr. Elberg and Robert D. Blau, of counsel and on the brief).

PER CURIAM

Defendants, The Labor Depot L.L.C., Stephen Signorile and Robert Criscuolo, appeal from a December 21, 2006 order denying their motion to vacate a default judgment entered in favor of twenty-two named plaintiffs on May 16, 2006. The motion judge concluded that defendants had not shown excusable neglect and a meritorious defense so as to justify vacating the default judgment. Because we conclude that the motion record created a material dispute of fact as to whether defendants were served with the complaint, we reverse and remand for further proceedings.

I

The complaint alleged that defendants sent unsolicited faxes in violation of the Telephone Consumer Protection Act, 47 U.S.C.A. 227, and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2. After defendants did not file an answer, plaintiffs applied for default judgment on April 17, 2006, and obtained a default judgment in the amount of $37,000.

On October 30, 2006, defendants filed a motion to vacate the default judgment. The motion was supported by a certification from defendant Criscuolo, attesting that he was never served with the complaint. Criscuolo attested that he had no notice of the lawsuit until co-defendant Signorile discovered the judgment while applying for a loan. According to Criscuolo, following this discovery his attorney contacted plaintiffs' counsel and obtained a copy of the complaint and a copy of an affidavit of service completed by Jordan Rubin of Action Subpoena. Rubin's affidavit alleged that he had made personal service on Criscuolo on February 9, 2006. However, Criscuolo specifically certified that he "was never served by Mr. Rubin or anyone else with the Complaint filed by plaintiffs." Criscuolo also certified that he was not employed by The Labor Depot and that he "most certainly [had] never faxed any information to any of the companies listed as plaintiffs in this matter for either myself or The Labor Depot."

Defendants' motion was also supported by a certification from Stephen Signorile. Like Criscuolo, Signorile certified that he was never served with the complaint, despite an affidavit from Rubin that Rubin had served him. Signorile's certification also noted that Action Subpoena, the entity employing Rubin to make service, was actually a named plaintiff. Signorile also explained that his company provided temporary staffing to other businesses and sometimes sent faxes if authorized by a customer or potential customer. He stated, however, that neither he nor his company sent unauthorized faxes to any of the plaintiffs. Moreover, it was unlikely that his company would even have contacted some of the plaintiffs because The Labor Depot did not provide temporary staffing to, for example, process serving companies such as Action Subpoena.

Defendants also submitted a certification of their attorney attaching an October 12, 2006 letter from plaintiffs' counsel alleging that "Jordan Rubin of Action Subpoena Company" had served process on defendants.

In opposition to the motion, plaintiffs filed an affidavit from Rubin attesting that he was "a Private Process Server, who was contracted by Action Process and Subpoena Co. Inc." to serve process in this case. He attested that he had served Criscuolo with the complaint on February 9, 2006. Plaintiffs also filed a certification from their counsel reciting that in addition to arranging to serve the complaint on defendants, he had served them by Federal Express with his application for default judgment, although Labor Depot refused delivery. He also contended he served defendants by certified and regular mail with the judgment, although the certified mail was returned unclaimed.

II

On a motion to vacate a judgment under Rule 4:50-1, we review the trial judge's decision for abuse of discretion. M & D Associates v. Mandara, 366 N.J. Super. 341, 350 (App. Div.), certif. denied, 180 N.J. 151 (2004); Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 99 (App. Div. 1998). Pursuant to Rule 4:50-1(d), a judgment may be vacated because it is void. Failure to serve a defendant with the complaint justifies voiding a judgment, regardless of whether the defendant can demonstrate a meritorious defense. See Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988); City of Passaic v. Shennett, 390 N.J. Super. 475, 485-86 (App. Div. 2007).

We conclude that defendants' proofs were sufficient to create a material dispute of fact as to whether they were served with the complaint, and that they were entitled to a hearing on that issue. Consequently, we conclude that the trial court's denial of the motion to vacate without holding such a hearing was an abuse of discretion. While it also appears that defendants presented a meritorious defense in the form of certifications that they did not send any unsolicited faxes, we need not reach that issue. If defendants were not properly served with the complaint, they need not establish either excusable neglect or a meritorious defense. See Peralta, supra.

We therefore remand for a plenary hearing on the issue of whether defendants were served with the complaint. In that connection, we note that if Rubin worked for an interested party, Action Subpoena, plaintiffs should not be accorded the usual presumption of proper service based on his affidavit of service. See R. 4:4-3(a). If the court determines that defendants were not served with the complaint, the judgment should be vacated on that basis. If the court determines that defendants were served with the complaint, the court should then reconsider the issues of whether defendants can establish excusable neglect and a meritorious defense. See Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964).

 
Reversed and remanded.

In light of our disposition of this appeal, we do not address defendants' additional challenges to the judgment.

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A-2578-06T5

December 13, 2007