ALANA BUCHANAN 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NOT FOR PUBLICATION WITHOUT THE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-0739-09T2

ALANA BUCHANAN,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, CECIL

BOONE, EDWARD BUTTIMORE, KEVIN

WEINKAUFF, NANCY SANTIAGO,

THOMAS PAGE, WILLIE GRAY, BRENT

EDWARDS, and JOSE ALBA,

Defendants-Respondents.

________________________________________________________________

November 12, 2010

Argued October 13, 2010 - Decided

Before Judges Wefing and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1998-06.

Michelle Joy Munsat argued the cause for appellant.

Thomas E. Kemble, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Kemble, on the brief).

PER CURIAM

Plaintiff Alana Buchanan appeals from the order of the Law Division entered on August 28, 2009, denying her motion to reinstate her complaint alleging malicious prosecution and related claims that was administratively dismissed pursuant to Rule l:13-7(a) on September 22, 2006. After considering plaintiff's arguments in light of the record and applicable law, we affirm.

The arrest that gave rise to plaintiff s complaint occurred on March 4, 2004. Plaintiff was working in a music store where she signed for a package containing illegal drugs, delivered by a law enforcement officer dressed in a FedEx uniform. Law enforcement then confronted her. After plaintiff denied knowledge of the contents of the package and refused to answer questions regarding the store owner, she was arrested and transported to the East Orange Police Department where she was charged with drug-related offenses. She remained in custody for over two days. Almost a year later all charges against her were administratively dismissed.

Her attorney served a notice of tort claim upon the State of New Jersey on May 17, 2005, and filed a complaint on March 3, 2006, against various state employees involved in the criminal investigation as well as their employer, the State of New Jersey. The complaint alleged malicious prosecution, negligent infliction of emotional distress and violations of her federal and state constitutional rights.

Plaintiff's counsel indicates that plaintiff ignored counsel s letters and phone calls from March 15, 2006, until October 5, 2007. Knowing plaintiff suffered from depression, anxiety and sleep difficulty, counsel assumed her client did not wish to pursue the litigation, and therefore ignored the court s notice that the matter would be administratively dismissed under Rule 1:13-7. On October 19, 2007, over a year after the dismissal, plaintiff notified counsel she wished to proceed with the matter.

On July 21, 2008, plaintiff's counsel properly served the State of New Jersey by mailing a copy of the dismissed complaint to the Attorney General. A year later she forwarded the summons and complaint for the three defendants still working for the State to the Attorney General.1

On August 3, 2009, almost three years after the administrative dismissal, counsel filed a motion to reinstate the complaint. Although counsel certifies she mailed the motion to the Attorney General s Office, that office denies receiving the papers and did not file opposition.

Rule 1:13-7(a) sets forth the standard governing motions to reinstate a complaint to which there is not consent. The pertinent part of Rule 1:13-7(a) states:

In multi-defendant actions in which at least one defendant has been properly served, the consent order shall be submitted within 60 days of the order of dismissal, and if not so submitted, a motion for reinstatement shall be required. The 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.

The trial court denied the motion. After plaintiff filed a notice of appeal, the trial court, pursuant to Rule 2:5-1(b), submitted a statement of reasons:

The Rule relied upon by the plaintiff affords her no relief. Initially, it should be noted that the Rule addressed reinstatement of complaints where one of the defendants in a multi-defendant case had been properly served. This is not the factual pattern present in this matter. Additionally, even if the service 22 months after the dismissal of the Complaint were to be deemed to have been properly served, I find that no exceptional circumstances have been presented to this Court to justify relief. This plaintiff allowed this matter to be dismissed in September 2006 and took no action to reinstate the Complaint until August of 2009. Despite the position advanced by counsel for the plaintiff, I find the delay to be inexcusable. To permit this complaint to be reinstated would clearly be prejudicial to the defendants. To allow reinstatement of a claim from 2004, 5 years later, 3 years after the statute of limitations has tolled, should not be permitted.

Plaintiff's counsel argues that the court improperly denied her client's motion to reinstate because it relied on the exceptional circumstances standard, which requires proper service on at least one defendant. Counsel argues that proper service would entail service prior to dismissal. Not having accomplished service prior to dismissal, she argues that the more lenient standard of good cause should be applied. We find this argument unpersuasive.

For service to be proper under Rule 1:13-7(a), it need not be made prior to dismissal. Weber v. Mayan Palace Hotel, 397 N.J. Super. 257, 264 (App. Div. 2007). When service is made after dismissal and prior to reinstatement, plaintiff must notify defendant of the dismissal when serving the complaint, and must promptly file a motion requesting reinstatement. Ibid. Rule 1:13-7(a) allows plaintiff to cure the defect that caused the dismissal, here lack of service. Reinstatement will then be granted if plaintiff meets the proper standard.

We have held under the good cause standard,2 "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. Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999). "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." Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007) (citations omitted).

A substantial delay, even of more than a year, "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." Rivera, supra, 321 N.J. Super. at 346-47 (suggesting that a complaint will not be reinstated if the adverse party was prejudiced by the delay in seeking reinstatement).

The State argues on appeal that it was prejudiced by the delay of more than six years because it will negatively affect the witnesses memories of the underlying arrest. Six of the nine defendant employees no longer work for the State. Plaintiff argues that defendant's claims of prejudice are merely speculative. We find that the delay of almost three years from the dismissal (over five years from the incident) prejudices defendant because witnesses memories deteriorate over time. The state employees involved were performing their usual law enforcement duties. Plaintiff claims she was arrested on insufficient evidence, not that the arrest was noteworthy to the law enforcement officers involved.

The standard of exceptional circumstances applies here because this motion for reinstatement was filed more than ninety days after dismissal. We do not, however, find it necessary to explore that standard, as we find the reasons advanced for the extensive delay here do not meet even the more lenient standard of good cause.

In determining whether to reinstate a complaint under the good cause standard, the court considers whether the failure of timely service was for good cause or attributable only to counsel's neglect. Id. at 346-47. See also Ghandi, supra, 390 N.J. Super. at 197-98 (counsel's inadvertence does not preclude a finding of good cause if defendant is not prejudiced and the plaintiff-client is completely innocent). Plaintiff argues the delay in service and filing a motion is attributable only to counsel's oversight and neglect, not that of plaintiff, asserting that under Ghandi the failings of counsel should not be visited on the client.

Plaintiff s counsel admits to receiving notice of the pending dismissal and taking no action because she assumed her client did not wish to proceed. Plaintiff did not respond to numerous letters and calls from counsel. Counsel relates that plaintiff did not always receive mail sent to her address. Counsel also indicates that plaintiff has emotional difficulties. Such excuses do not constitute good cause given a delay of almost three years from the dismissal to the motion to reinstate. Plaintiff informed counsel over one year after the dismissal of her desire to proceed. After being notified by her client, counsel waited almost two years before filing a motion to reinstate. Clearly, both plaintiff and counsel were at fault.

A

1 At that time, service on the State of a complaint naming a current state employee was only proper service on the individual employee for counts alleging intentional tortious conduct. See Stoeckel v. Twp. of Knowltown, 387 N.J. Super. 1, 22 (App. Div. 2006) (noting that public employees must be served individually for all claims accruing under the New Jersey Tort Claims Act before June 29, 2004, except for those alleging intentional tortious conduct); see also Pressler & Verniero, Current N.J. Court Rules, comment 19 on R. 4:5-4 (2011).

2 Prior to the amendment effective September l, 2008, the language of Rule l:13-7(a) was "reinstatement of the action after dismissal may be permitted only on motion for good cause shown."