JAMES HENDERSON v. SERGIO CASTRO, EXPO 2000 OF NY, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1886-11T4

JAMES HENDERSON,

Plaintiff-Appellant,

v.

SERGIO CASTRO, EXPO 2000 OF

NY, INC., LAVERNE M. SHEPPARD

and NJ TRANSIT CORP.,

Defendants-Respondents.

________________________________________________________________

December 19, 2012

Submitted October 24, 2012 - Decided

Before Judges Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1742-10.

Anise & Anise, attorneys for appellant (Zareh H. Beylerian, on the brief).

Law Offices of William E. Staehle, attorney for respondents Sergio Castro and Expo 2000 of NY, Inc. (Mr. Staehle, of counsel and on the brief).

PER CURIAM

Plaintiff James Henderson appeals from the November 18, 2011 order granting the motion filed by defendants Sergio Castro and Expo 2000 of NY, Inc. to dismiss plaintiff's complaint with prejudice, thereby denying plaintiff's motion to reinstate the complaint. Plaintiff argues that the motion judge abused his discretion by following the plain language of Rule 1:13-7(a), which requires that a plaintiff demonstrate "exceptional circumstances" when seeking to reinstate a multi-defendant case more than ninety days after an administrative dismissal. After reviewing the issue in light of the current law, we affirm.

Plaintiff filed a complaint on March 26, 2010 alleging that he was injured in a motor vehicle accident almost two years before, incurring more than $100,000 in medical bills. He filed suit against four defendants. Plaintiff's attorney indicates that "[a] full specials package inclusive of medical records, bills, and other documents were forwarded [to] Defendants'[1] insurer Travelers Insurance on [August 10,] 2010." Service of process was not completed until October 29, 2011, after the complaint was administratively dismissed as to all defendants without prejudice on April 15, 2011, pursuant to Rule 1:13-7, for lack of prosecution.2 None of the defendants have filed an answer.

Rule 1:13-7(a) was amended in 2008 to improve case management by changing the "good cause" standard to the "exceptional circumstances" standard in multi-defendant cases. The commentary states:

[T]he case likely will have proceeded and discovery undertaken before the unserved defendant is brought in. Thus vacation of the dismissal against that defendant has the capacity of substantially delaying all further proceedings. To permit appropriate case management, the rule requires the consent order to be submitted within 60 days after the dismissal, and thereafter a motion must be filed.

. . .

Moreover, good cause is the standard if the motion is filed within 90 days after the dismissal order and thereafter, the exceptional-circumstances standard applies.

[Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 1:13-7 (2013).]

Plaintiff indicates that the delay in service and delay in filing the motion was caused by a defective computer upgrade in his attorney's office, which prevented counsel from properly tracking cases. Although counsel concedes that the computer problems do not constitute "exceptional circumstances," he argues that the reasoning behind the Rule's enhanced standard for multi-defendant cases does not exist in this case.

The motion judge wrote in his order:

It is unfortunate that . . . [Rule] 1:13-7a does not provide much guidance after a court denies a part[y']s motion to vacate the administrative dismissal for failure to show exceptional circumstances why a motion to vacate wasn't made within 90 days of the dismissal. This court in the absence of directive finds that the defendant is entitled to finality and therefore grants this application. The one caveat is that if the statute of limitations has not run then plaintiff may file the same action under a new lawsuit.

We review the judge's decision under an abuse of discretion standard. Baskett v. Cheung, 422 N.J. Super. 377, 382 (App. Div. 2011) (citations omitted). The reasons for requiring an enhanced standard are not present here, and Castro and Expo 2000 of NY, Inc. do not argue prejudice or inefficient case management. We are, however, unable to view the enforcement of the plain language of the Rule to be an abuse of discretion.

1 Plaintiff does not specify which defendants were covered by Travelers Insurance.

2 Defendants Castro and Expo 2000 of NY, Inc. filed a prior motion to dismiss with prejudice, which resulted in a March 4, 2011 order dismissing the complaint without prejudice as to Castro only. It appears that the complaint had also been dismissed without prejudice as to all defendants on October 22, 2010. Thus the complaint is now dismissed with prejudice against two defendants, Castro and Expo 2000 of NY, Inc., and dismissed without prejudice as to the other two defendants, Laverne M. Sheppard and NJ Transit Corp.