ROXANNE GALLEMORE v. ESSEX COUNTY CORRECTIONS FACILITY ANNEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2214-09T1

ROXANNE GALLEMORE, ADMINISTRATRIX

AD PROSEQUENDUM FOR LAMONTE

GALLEMORE,

Plaintiff-Appellant,

v.

ESSEX COUNTY CORRECTIONS FACILITY

ANNEX, COUNTY OF ESSEX, DIRECTOR

OF PUBLIC SAFETY, DIRECTOR OF THE

ESSEX COUNTY JAIL ANNEX, WARDEN OF

THE ESSEX COUNTY JAIL ANNEX, ESSEX

COUNTY POLICE ACADEMY,

Defendants-Respondents.

_____________________________________

March 8, 2011

Submitted January 20, 2011 - Decided

Before Judges Fuentes and Ashrafi.

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

L-10546-06.

Warren & Tosi, P.C., attorneys for appellant (Dwayne D. Warren, on the brief).

James R. Paganelli, Essex County Counsel, attorney for respondents (Mr. Paganelli, of counsel; Alan Ruddy, Assistant County Counsel, on the brief).

PER CURIAM

Plaintiff Roxanne Gallemore appeals from an order of the Law Division denying reinstatement of her wrongful death complaint following dismissal under Rule 1:13-7(a). Plaintiff's motion to reinstate was filed after more than two years of inactivity in the case. Although the abuse of discretion standard ordinarily applies to a trial court's ruling under Rule 1:13-7(a), Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007), we are constrained to reverse and remand for further development of the record pertaining to the administrative dismissal.

Plaintiff's complaint arose from the tragic death of her nineteen-year-old son, Lamonte Gallemore, while in the custody of Essex County authorities. According to a police report, Lamonte was arrested by Irvington police on October 12, 2003, on charges of robbery, assault, and resisting arrest. One week later, Essex County corrections authorities transferred him to a unit of the old Essex County Jail Annex in Caldwell where gang members where housed. According to plaintiff, her son was not involved with a gang. Within hours of his entry into the jail unit, Lamonte was attacked by gang members and brutally beaten in a shower stall, apparently for no reason other than jailhouse gang recruitment activity. He died on October 19, 2003, of severe blunt force trauma to his upper body.

Plaintiff originally filed a complaint in October 2004, alleging negligence of county authorities and civil rights violations for placing her son in a gang unit and for failing to protect his safety. Defendants filed an answer to the complaint, and plaintiff pursued discovery of county records. Because the criminal investigation and prosecution of the assailants were in progress, plaintiff's attorney was unable to obtain all the document discovery he sought to support the civil complaint. Also, county counsel indicated a desire to negotiate a potential settlement of plaintiff's claims but needed information that was then unavailable. As a result, plaintiff's attorney and assistant county counsel agreed to a voluntary dismissal of plaintiff's complaint without prejudice to its reinstatement. A consent order dismissing the original complaint without prejudice was filed on May 5, 2006.

When a settlement could not be reached, plaintiff filed a new ten-count complaint against county corrections authorities on December 26, 2006. The court issued a track assignment notice indicating that the case would have a discovery period of 450 days. Plaintiff's attorney did not serve the new complaint on the defendants but mailed a copy to county counsel on March 13, 2007. At the same time, he served a subpoena upon the Essex County Prosecutor for documents relevant to the case. On March 27, 2007, and July 5, 2007, the Law Division entered orders enforcing the subpoena served upon the Essex County Prosecutor. Because no answer was timely filed to plaintiff's new complaint, and plaintiff did not file proof of service or request entry of default within four months of filing the new complaint, the court clerk administratively dismissed plaintiff's complaint on July 14, 2007, for failure to prosecute under Rule 1:13-7(a). Apparently unaware of the dismissal, county counsel propounded interrogatories upon plaintiff on October 6, 2007. There is no record of plaintiff responding to the interrogatories.

For the next two years, no recorded activity occurred in the case. A certification of assistant county counsel states that some further efforts were made to settle the case by an attorney other than plaintiff's attorney-of-record, and with the participation of the Reverend Al Sharpton, but no specifics have been provided as to those efforts. Two years after the complaint was dismissed, on July 10, 2009, plaintiff personally filed an application with the county under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for documents related to her son's death. At that time, assistant county counsel determined that plaintiff's civil complaint had been dismissed in July 2007 and directed compliance with plaintiff's OPRA application.

On October 7, 2009, plaintiff filed a motion through counsel to reinstate her complaint. Counsel stated in his certification that he had not received a notice from the court that the case would be or was dismissed under Rule 1:13-7(a). He stated that earlier delay in the case had been caused by his inability to obtain necessary documents while the criminal prosecutions were active, and he now had documents that would allow the expert he had retained to issue a report pertaining to the negligence of corrections authorities in housing the decedent with known, violent gang members.

The Law Division denied plaintiff's unopposed motion to reinstate her complaint by order dated November 5, 2009, stating that the motion was untimely and the expert report referenced had not yet been prepared and served.

Plaintiff then filed a motion for reconsideration. County counsel opposed the motion, contending among other things that years had passed since the incident resulting in the homicide, that the Essex County Jail Annex had closed in 2004, and that knowledgeable administrative personnel had changed since that time. County counsel argued that defendants would be prejudiced if they were required to defend the case some six years after the underlying events.

After hearing argument on the motion for reconsideration, the Law Division found that plaintiff's attorney had provided no excuse for inactivity of more than two years and that defendants were prejudiced by the delay. The court concluded that plaintiff's application to reinstate did not show exceptional circumstances for reinstatement, as required by Rule 1:13-7(a). The court entered an order on January 9, 2010, denying plaintiff's motion for reconsideration, and plaintiff appealed.

Rule 1:13-7(a) states in relevant part:

whenever an action has been pending for four months . . . without a required proceeding having been taken therein as hereafter 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 no such action is taken, the court shall enter an order of dismissal without prejudice as to any named defendant and shall furnish the plaintiff with a copy thereof. After dismissal . . . 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 purpose of this administrative rule is "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).

We previously stated in Ghandi, supra, 390 N.J. Super. 193, that dismissals under the rule are without prejudice, and "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 (quoting Rivera v. Atl. Coast Rehab. Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999)). When we decided Ghandi, however, the rule only contained a good cause requirement for reinstatement of a dismissed pleading. In 2008, the rule was amended to require a showing of exceptional circumstances if a motion to reinstate is not filed within ninety days of the order of dismissal. In this case, plaintiff filed her motion twenty-seven months after her complaint was dismissed.

We agree with the Law Division that counsel does not have an adequate explanation for failing to pursue the matter for more than two years between July 2007 and October 2009. There is no record of any action involving the court, or any discovery between the parties being conducted during that time. Although defendants propounded interrogatories to plaintiff on October 7, 2007, plaintiff apparently did not answer the interrogatories. And nothing further occurred until plaintiff herself made an OPRA request in July 2009. As the Law Division stated, plaintiff's inactivity is contrary to a showing of exceptional circumstances.

Plaintiff argues that the rule should not be strictly applied because her attorney never received a notice from the court that the complaint would be dismissed, or the order of dismissal issued in July 2007. She asserts that her due process rights were violated by the dismissal without such notice and an opportunity to reinstate.

In keeping with our prior holdings, Rule 1:13-7(a) must not interfere unfairly with the opportunity of litigants to have their cases determined on their merits. See Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002); Audubon Volunteer Fire Co. v. Church Const. Co., 206 N.J. Super. 405, 407 (App. Div. 1986); see also Nowosleska v. Steele, 400 N.J. Super. 297, 303 (App. Div. 2008) (our courts favor deciding cases on their merits); Loranger v. Alban, 22 N.J. Super. 336, 342 (App. Div. 1952) (indulgence granted in vacating default judgment so that case can be decided on merits). Under the amended rule, the administrative dismissal could very well be the final order of disposition for the case.

Rule 1:13-7(a) requires that the court issue a written notice of its intent to dismiss a pleading for lack of prosecution sixty days before the dismissal date. It also requires that the court furnish to plaintiff a copy of the order of dismissal. Also, Rule 1:5-1(a) requires service of all motions, orders, and other papers upon all attorneys of record and pro se parties. Because the court generates the administrative dismissal, the court must rely upon its own records to establish proper service upon the affected parties.

Here, no copy of a notice or the dismissal order is available in the court's file. According to the transcript of oral argument in the trial court, the clerk's office did not retain a copy of any notice issued to plaintiff or the dismissal order. The only record appears to be the court's computerized docket entries indicating that the case was administratively dismissed on July 14, 2007.1

Assistant county counsel does not have copies of a notice and order of dismissal. He did not receive them in 2007, apparently because answers to the new complaint were never filed and the court's docket did not indicate that county counsel represented the defendants named in the new complaint. As previously stated, plaintiff's attorney claims he never received the notice or order.

In similar circumstances, where plaintiff's complaint had been administratively dismissed by the court under another provision of the court rules, we held that "implicit in the time proscriptions of [the rules] is that the order from which relief is sought . . . must first have been served upon the attorney for the party against whom the order was entered." Farrell v. TCI of Northern N.J., 378 N.J. Super. 341, 348 (App. Div. 2005).

Where plaintiff or her attorney has submitted an affidavit or certification declaring that they did not receive service of the required notice and order, the court must resolve that issue before applying the deadlines of Rule 1:13-7(a). If service of the dismissal documents cannot be shown, the deadlines of the rule are not triggered, and plaintiff is entitled to reinstate her complaint because the administrative dismissal is without prejudice. See Mason, supra, 233 N.J. Super. at 267-70.

In this case, the trial court did not make a finding as to whether plaintiff's attorney was properly served. When proof of service is included in the record, there is a presumption that service has been made. See State v. Eatontown Borough, 366 N.J. Super. 626, 639 (App. Div. 2004). The party who claims he was not served has the burden of proof to overcome the presumption.

The record before us does not adequately address the court's record-keeping practices at the time of the dismissal of plaintiff's complaint. We must remand to the trial court to determine whether service was made. If the court determines that plaintiff's attorney did not receive the notice and order of dismissal, or if the court cannot make that determination because the record does not establish when the documents were served, plaintiff should be permitted to reinstate her complaint.

We are aware, of course, that the time of inactivity in this case exceeded the statutes of limitations for pursuit of the claims brought by plaintiff. See N.J.S.A. 2A:31-3 (wrongful death); Montells v. Haynes, 133 N.J. 282, 286 (1993) (two-year statute of limitations under N.J.S.A. 2A:14-2 applicable to civil rights claims). Our decision does not affect defendants' right to raise laches or other equitable defenses resulting from plaintiff's delay in prosecuting the case. See Knorr v. Smeal, 178 N.J. 169, 180-81 (2003); County of Morris v. Fauver, 153 N.J. 80, 105 (1998).

Reversed and remanded. We do not retain jurisdiction.

1 Outside the record developed in the trial court, we have learned that the court does not retain paper copies of documents in a dismissed file because of limitations on storage space. We understand that as of 2009, the computerized docket entries maintained by the court indicate when notice of pending dismissal under Rule 1:13-7(a) and the order of dismissal were mailed to the attorneys of record.