KEN GREEN v. STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3338-07T13338-07T1

KEN GREEN,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, THE

DEPARTMENT OF LAW AND

PUBLIC SAFETY OF THE STATE

OF NEW JERSEY, NANCY KAPLEN,

JAMES MARTIN, KATHRYN RENAHAN,

and DONALD CATINELLO,

Defendants-Respondents,

and

MICHELE DAITZ and BETH PASCAL,

Defendants.

____________________________

 

Submitted November 5, 2008 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3287-05.

F. Michael Daily, Jr., LLC, attorneys for appellant (F. Michael Daily, Jr., of counsel; Amy B. Sunnergren, on the brief).

Saiber LLC, attorneys for respondent Kathryn Renahan (Jennifer R. O'Connor, on the brief).

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent Don E. Catinello (Vimal K. Shah, on the brief).

Gibbons P.C., attorneys for respondents State of New Jersey, The Department of Law and Public Safety of the State of New Jersey, Nancy Kaplen and James Martin (Christine A. Amalfe, of counsel and on the brief; Kristin D. Sostowski, on the brief).

PER CURIAM

Plaintiff Ken Green appeals from the February 13, 2008 order of the Law Division that: 1) denied his motion seeking to reinstate his complaint, pursuant to Rule 1:13-7(a); and 2) dismissed the complaint with prejudice as to certain defendants.

For reasons that follow, we reverse.

This matter has a tortious procedural history. Plaintiff is a State Deputy Attorney General. On December 12, 2005, plaintiff filed a complaint against the State and the Department of Law and Public Safety (collectively, the State defendants), alleging race discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and in violation of the Equal Protection Clause of the Fourteenth Amendment, citing 42 U.S.C.A. 1981 and 42 U.S.C.A. 1983. Also named in the complaint were Nancy Kaplen, Acting Director of the Division of Law; Kathryn Renahan, Section Chief of the Employment Litigation Section of the Division of Law; Don E. Catinello (incorrectly designated in the complaint as Donald Catinello), a Deputy Attorney General in the EEO/Affirmative Action Unit in the Office of the Attorney General; and Michele Daitz, James Martin, and Elizabeth Pascal (incorrectly designated in the complaint as Beth Pascal), Deputy Attorneys General, in the Employment Litigation Section of the Division of Law.

On February 10, 2006, plaintiff served the State defendants. On March 13, 2006, the State defendants filed a notice of removal of the action to the United States District Court for the District of New Jersey. On May 4, 2006, the State defendants filed their answer in the Federal District Court. The individual defendants were served in May and June 2006. On July 24, 2006, and August 7, 2006, the individual defendants filed their answers in the Federal District Court.

On January 30, 2007, plaintiff filed a stipulation of dismissal of his federal claim. On February 5, 2007, the Federal District Court entered an order of remand. The Law Division filed the order on February 28, 2007. For reasons that remain unknown, the answers filed by defendants in the Federal District Court were not adopted or otherwise incorporated into the Law Division's docket.

In May 2007, the trial court sent plaintiff's counsel notice that the court intended to dismiss the complaint as to all defendants, pursuant to Rule 1:13-7(a), for failure of plaintiff to effect service of process. On May 22, 2007, Renahan filed a second answer in the Law Division. In mid-June, plaintiff's counsel, after noticing that no defendant, other than Renahan, had filed an answer in the Law Division, copied the answers filed by defendants in the Federal District Court and sent them to the Law Division for filing. The court did not accept the answers because they were not accompanied by the appropriate filing fee. On July 7, 2007, the court dismissed the complaint as to all defendants, except Renahan, for lack of prosecution pursuant to Rule 1:13-7(a).

In the interim, on July 6, 2007, counsel for the State defendants wrote to the trial court advising of the procedural history of the case and requesting that: "(1) a case management conference be scheduled at Your Honor's convenience in July"; and "(2) the discovery end date for this matter be extended by six months, from August 4, 2007 to February 4, 2008." In making the request, counsel stated:

Defendants' counsel believed that once the case was remanded to this [c]ourt, a new tracking order would be issued and a case management conference scheduled. Instead, it appears that when this matter was remanded, it was treated as if the case had not been pending in federal court for nearly a year. The case docket indicates that the original 450-day tracking order remains in effect, with the discovery end date currently set for August 4, 2007.

Due to the case's circuitous procedural route and resulting delays in the [p]arties' discovery, we do not believe an August 4, 2007 discovery end date is feasible. The parties have not yet completed written discovery and no depositions have occurred to date. Given that there are six individual defendants and many more third-party witnesses with relevant knowledge (most of whom are attorneys with the Division of Law), we anticipate that a significant number of depositions may be necessary and that it will not be possible to complete these depositions within the next four weeks. Accordingly, we request that the discovery end date in this matter be extended by six months, to February 4, 2008.

Also in early July 2007, defendants' counsel became aware that the State court had not adopted their Federal Court answers. Accordingly, counsel attempted to file new answers in the Law Division, but they were rejected, with the court advising that the complaint had been dismissed. At about the same time, plaintiff moved to enter default as to the individual defendants, except Renahan. The court also rejected that request for the same reason.

On or about January 14, 2008, plaintiff moved to reinstate the complaint as to all dismissed defendants, except Daitz and Pascal. Defendants opposed the motion, contending, as they now argue on appeal, that they would suffer prejudice by reinstatement of the complaint. Specifically, defendants asserted that: only two of the six individual defendants remain employed by the State as of the time of the motion; four individual defendants and numerous third-party witnesses, who plaintiff advised he intended to depose, had left the State's employ; it was unclear whether those four defendants and witnesses would cooperate in the matter; and the memories of certain witnesses had faded because four to five years had passed from the time of the alleged discriminatory acts.

The trial judge, after hearing oral argument, not only denied plaintiff's motion to restore the complaint, but also dismissed the complaint with prejudice as to defendants: the State of New Jersey, the Department of Law and Public Safety of the State of New Jersey, Kaplen, Martin, Catinello, and Renahan. The judge determined that plaintiff failed to establish good cause to restore the complaint and that defendants may suffer prejudice because several defendants are no longer employed by the State. In expressing his reasons, the trial judge stated:

I'm going to dismiss this action in its entirety. I'm surprised I'm taking that course. It's almost draconian in its own way. I've thought about this case a whole lot, but ultimately, the time frames that have been set forth are horrific. There have been significant delays throughout. I'm not going to repeat the time line, that's already set forth on the record, [the delays] do not go away with explanations that I've heard here. Notwithstanding issues, notwithstanding problems that counsel may have in plaintiff's firm, notwithstanding problems that the plaintiff may have, it just simply doesn't carry the day. This is serious litigation. It is fact sensitive to the [ninth] degree, the passage of time here is very, very significant. I do think it's going to result in prejudice. Whether or not the witnesses are going to cooperate or not is anybody's guess. Chances are they're not going to be as cooperative as they would have been . . . had they still been in the employ of the State of New Jersey. And that's just another added factor in the mix.

On appeal, plaintiff argues that the trial court erred in dismissing the action "based upon a significant passage of time." We agree.

At the time of the motion, Rule 1:13-7(a) provided in pertinent part:

Except [in certain proceedings not applicable here,] and except as otherwise provided by rule or court order, whenever any civil action shall have been pending in any court for four months without a required proceeding having been taken therein as hereinafter defined in subsection (b), the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice unless, within said period, action specified in subsection (c) is taken. If the action as prescribed in subsection (c) is not taken, the court shall enter an order of dismissal without prejudice as to any named party defendant and shall furnish the plaintiff with a copy thereof. Reinstatement of the action after dismissal may be permitted upon submission of a consent order that vacates the dismissal and allows the dismissed defendant to file an answer, provided the proposed consent order is accompanied by the answer for filing, a case information statement and the requisite fee. The entry of the consent order may be permitted in the discretion of the court. Otherwise, reinstatement of the action after dismissal may be permitted only on motion for good cause shown.

We recently addressed the right of a litigant to have his or her complaint restored pursuant to Rule 1:13-7(a). Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007). In Ghandi, we stated:

"Good cause" is an amorphous term, that is, it "is 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." Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002). Rule 1:13-7(a) is an administrative rule "designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion." Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989). Dismissals under the rule are "without prejudice." R. 1:13-7(a). Accordingly, the right to "reinstatement is ordinarily routinely and freely granted when plaintiff has cured the problem that led to the dismissal even if the application is made many months later." Rivera v. Atl. Coast Rehab. Center, 321 N.J. Super. 340, 346 (App. Div. 1999).

Prior to the "Best Practices" amendments, effective September 5, 2000, Rule 1:13-7(a) did not address reinstatement of the complaint; however, it was deemed implicit therein. Ibid. Under the former rule, we directed that trial courts should be guided by the same standards governing motions to dismiss, Rule 4:37-2(a), for failure to issue timely service of process under Rule 4:4-1, when deciding whether to deny a motion to restore when delay has occurred. Ibid. In such cases, "we have uniformly held even a substantial delay -- in some cases a year or more -- will not bar the continued prosecution of the action where the failure of timely service was either for good cause or attributable only to counsel's neglect and, in addition, the defendant was not prejudiced thereby in the ability to maintain a defense." Id. at 346-47 (emphasis added). Effective September 5, 2000, the rule was amended to provide for reinstatement after dismissal on a motion for good cause shown. . . . Notwithstanding the adoption of the good cause standard, we are satisfied that, absent a finding of fault by the plaintiff and prejudice to the defendant, a motion to restore under the rule should be viewed with great liberality.

[Ghandi, supra, 390 N.J. Super. at 196-97.]

The trial judge placed the blame for the dismissal and delay in moving to reinstate at the feet of plaintiff. Although we agree that plaintiff's actions contributed to the delay by failing to promptly move to reinstate the complaint, we cannot place the cause for the delay in prosecuting the case solely at the feet of plaintiff or his counsel.

Here, the case was removed to the Federal District Court by the State defendants. After the individual defendants filed their answers in Federal Court, the United States Magistrate conducted a settlement conference on November 27, 2006. Following the settlement conference, plaintiff filed a stipulation of dismissal as to the federal claim on January 30, 2007, resulting in the Federal District Court remanding the State claim back to the Law Division on February 6, 2007. The Law Division filed the order of remand on February 28, 2007, but failed to adopt and incorporate into its docket the answers filed by the defendants in the Federal Court.

That failure resulted in the court's sending a Rule 1:13-7(a) notice to plaintiff advising that the court intended to dismiss the action as to all defendants for failure of plaintiff to prosecute the action. Although both plaintiff's and defendants' counsel communicated with the court advising that answers had been filed in the federal action, the court nevertheless entered an order of dismissal. This should not have occurred. Edward Hansen, Inc. v. Kearny Post Office Assocs., 166 N.J. Super. 161, 170 (Ch. Div. 1979) (stating that "pleadings filed in the District Court should be adopted as if they had originally been filed in [the State] court" to "avoid the needless waste of time, effort and expense which would result from requiring counsel to duplicate . . . their actions . . . in the federal court").

Moreover, the Rule 1:13-7(a) order dismissing the action without prejudice was entered only as to those defendants who failed to file a second answer in the Law Division, not Renahan. Nonetheless, although defendants never cross-moved, the trial court dismissed the action with prejudice as to all defendants. That the complaint was inadvertently dismissed by the court in the first instance, for reasons other than provided in Rule 1:13-7(a), constituted good cause for granting the motion and restoring the action. In addition, although defendants argued that they may suffer prejudice as a result of defendants or witnesses no longer serving in the employ of the State, no actual prejudice was established. Mere speculation as to prejudice does not constitute a valid reason to deny restoration of a complaint under Rule 1:13-7(a). Accordingly, we conclude under the facts that the trial judge mistakenly exercised his discretion in denying plaintiff's motion to reinstate the complaint and by dismissing the action with prejudice as to all defendants.

We understand a trial court's frustration when confronted by a motion to restore a complaint six months after it was dismissed. However, denying the motion and dismissing the action with prejudice is too severe of a sanction to impose on plaintiff under the facts herein. "There are ways short of dismissal or default to deal with slowdowns which cost a party money, waste the lawyers' time, prejudice a plaintiff's ability to collect a judgment or a defendant's ability to defend against one, or unjustifiably consume judicial resources." Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 407 (App. Div. 1986). For example, we suggested in Audubon, that a court might look to Rule 1:1-2 in resolving issues of delay. Ibid. Moreover, as in this case, "'there is a general disinclination to invoke the ultimate sanction of dismissal where the statute of limitations has run.'" Mason, supra, 233 N.J. Super. at 268-69 (quoting Crews v. Garmoney, 141 N.J. Super. 93, 96 (App. Div. 1976)).

Accordingly, we reverse and remand the matter to the trial court for further proceedings consistent with this opinion.

The rule was subsequently amended, effective September 1, 2004, to provide an alternate procedure for restoring the complaint by consent order in the discretion of the court. It was further amended on July 9, 2008, effective September 1, 2008, to provide that if the motion to restore the complaint is filed more than sixty days after its dismissal, the standard of review changes from that of good cause to exceptional circumstances.

(continued)

(continued)

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A-3338-07T1

December 18, 2008