DONNA M. RAMOS v. CATHERINE MAULBECK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2043-08T32043-08T3

DONNA M. RAMOS and PEDRO RAMOS,

her husband,

Plaintiffs-Appellants,

v.

CATHERINE MAULBECK,

Defendant-Respondent.

__________________________________

 

Submitted September 15, 2009 - Decided

Before Judges Skillman and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

L-3965-05.

Law Offices of Herbert I. Ellis, P.C., attorneys

for appellants (Gerald A. Dienst, on the brief).

Romando, Tucker, Zirulnik & Sherlock, attorneys

for respondent (Elizabeth R. Brennan, on the

brief).

PER CURIAM

Plaintiffs Donna and Pedro Ramos appeal from the order of the Law Division denying their motion to restore their complaint that was administratively dismissed under Rule 1:13-7(a). After reviewing the relevant facts, and in light of prevailing legal standards, we affirm.

The motor vehicle accident that gave rise to plaintiffs' complaint occurred on September 13, 2003. According to the police report, Donna Ramos stopped her vehicle along the curb to pick up a family member who was standing on the sidewalk in a supermarket parking lot. As defendant attempted to exit the parking lot, she struck Ramos' car from the rear. This account of the accident was given to the responding officer by Eileen Forte, identified as "witness for D#1." The report listed plaintiff as "D#1."

After exchanging preliminary correspondence with defendant's insurance carrier, plaintiffs' counsel filed the complaint on September 8, 2005, five days before the expiration of the two-year statute of limitations. On October 6, 2005, plaintiffs' counsel attempted to serve the summons and complaint upon defendant Catherine Maulbeck via certified mail, return receipt requested. The mail was marked "undeliverable" and returned by the United States Postal Service.

On October 17, 2005, plaintiffs' counsel made a second attempt to serve process, this time through a private process server. Three days later the server advised counsel that it was unable to serve defendant at her last known address. Further investigation revealed that defendant had died on July 4, 2004, fourteen months before the complaint was filed. Plaintiffs' counsel took no further action to effectuate service.

On March 25, 2006, the court notified counsel that the complaint had been administratively dismissed without prejudice pursuant to Rule 1:13-7(a). Counsel certified that he disregarded this notice because he was under the mistaken impression that this case had been consolidated with Ramos v. Carteret Shopping Center, another active case he was prosecuting on behalf of Donna Ramos. According to plaintiff's counsel, however, plaintiff settled the Carteret Shopping Center case approximately two years prior to this matter coming before the court on plaintiffs' motion for substituted service.

On September 28, 2008, plaintiffs' counsel filed a motion seeking leave of the court to serve defendant through her insurance carrier. According to counsel, he served this motion for substituted service "on the theory that after service, he could move to vacate the dismissal." The motion came before the court on October 24, 2008. After reviewing the procedural history described herein, with special emphasis on the fact that the case had laid dormant for over thirty months, the court denied the motion. Noting that the standard for relief required that plaintiffs show both good cause for the failure to prosecute and that restoration of the case would not prejudice defendant, the motion judge concluded that counsel had not established good cause.

Although the trial court did not reach the issue of prejudice, defense counsel asserts that if he is forced to try this case, he will be prejudiced as follows: (1) his client is no longer available to present her side of how the accident occurred; (2) the independent witness identified in the police report may no longer be available; and (3) the settlement of the Carteret Shopping Center case may prejudice defendant as a possible violation of the entire controversy doctrine.

We will first address good cause, the issue the trial court found dispositive. We grappled with this vexing concept in Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007), a case that also involved the dismissal of a complaint under Rule 1:13-7(a). Thus in Ghandi we said that

"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. 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. Dismissals under the rule are without prejudice. 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.

[Id. at 196 (citations omitted)].

Against this standard, we found in Ghandi a sufficient basis to restore the plaintiff's complaint. There are key differences, however, between the facts in Ghandi and those we confront here. Because these cases are fact-sensitive, a quick comparison is warranted.

In Ghandi, the delay was fifteen months. Id. at 195. Here, the case laid dormant for over thirty months. In Ghandi, the defense counsel consented to the restoration. Ibid. Here, defense counsel has steadfastly opposed the application. In Ghandi, the plaintiff's delay was partly caused by the defense counsel's failure to file a responsive pleading after service of process was completed. Ibid. Here, although plaintiffs' counsel corresponded with defendant's insurance carrier before he filed the complaint, there is no indication that defense counsel contributed in any way to plaintiffs' counsel's inaction.

Against the facts before them, our colleagues in Ghandi concluded that the trial court erred in denying the motion to restore for the following reasons:

We determine from the motion judge's letter of February 8, 2006, that he found the delay in moving to restore was attributable to certain transgressions of plaintiff's counsel, through no fault of plaintiff. Because defendants had not objected to reinstatement of the matter and were ready to file an answer to facilitate moving it forward to a resolution on the merits, we conclude that the motion judge mistakenly exercised his discretion in denying the motion. (Emphasis added.)

[Id. at 197.]

Here, by contrast, defense counsel played no role in the delay; the period of inaction is two times longer than in Ghandi; and plaintiffs' counsel has not come forward with any plausible explanation to justify or mitigate the magnitude of this neglect. In this light, we agree with the motion judge that plaintiffs' counsel has not demonstrated good cause for the relief requested.

We understand and fully endorse the standard expressed in Ghandi: "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." Id. at 196 (citation omitted). That being said, we are also mindful that if the procedural requirements of Rule 1:13-7(a) are not enforced under these facts, it can plausibly be argued that the rule has been stripped of all of its integrity. Such a perception demoralizes the lawyers and litigants who dutifully adhere to the rule's requirements; encourages, or at the very least leaves unsanctioned, further dereliction; and undermines the hard work of trial judges as they struggle to balance the competing interests discussed here.

In summary, under the facts presented here, we find no basis to conclude that the trial court abused its discretion in denying plaintiffs' motion to restore a complaint that laid dormant for over thirty months after it was administratively dismissed pursuant to Rule 1:13-7(a). Because the trial court's ruling was predicated on a finding that counsel had not established good cause for the delay, we need not, and specifically do not reach, the question of prejudice.

Affirmed.

 

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A-2043-08T3

October 15, 2009