ARTHUR BOKER v. WAL-MART STORES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2126-12T4

ARTHUR BOKER and JACQUELINE

BOOKER, h/w

Plaintiffs-Appellants,

v.

WAL-MART STORES, INC.,

Defendant-Respondent,

and

USM, INC., and MILLER'S

LAWN CARE,

Respondents.

November 22, 2013

 

 

Before Judges Sapp-Peterson and Hoffman.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0670-12.

 

William J. Stopper argued the cause for appellants (Stopper Lopez Law, LLC, attorneys; Mr. Stopper, on the brief).

 

Matthew G. Minor argued the cause for respondents USM, Inc., and Miller's Lawn Care (Sweet Pasquarelli, P.C., attorneys; Mr. Minor, on the brief).

 

Respondent Wal-Mart Stores, Inc., has not filed a brief.

PER CURIAM

Plaintiffs appeal the December 7, 2012 order denying their motion to reinstate their complaint and to file an amended complaint naming USM, Inc. (USM) and Miller's Lawn Care (MLC) as defendants. When the action was originally filed, defendant Wal-Mart, Inc. (Wal-Mart) was the only defendant specifically named in the complaint, which also named fictitious defendants. See R. 4:26-4. For the reasons that follow, we reverse.

I.

On February 8, 2010, plaintiff Arthur Boker1 sustained injuries when he slipped and fell on ice at the parking lot of his employer, Wal-Mart. About eight months later, plaintiffs' counsel advised Wal-Mart that he had been retained to represent plaintiffs, and requested the name of the snow removal company responsible for maintaining the premises on the date of the accident. Wal-Mart did not respond to the inquiry.

On February 6, 2012, two days before the expiration of the statute of limitations, plaintiffs filed a complaint alleging negligence and naming Wal-Mart as a defendant, in addition to fictitious defendants "John Doe Snow Removal Company" and "John Does (1-10) Responsible Parties" (collectively, fictitious defendants). In the first count, plaintiffs demanded Wal-Mart "be compelled to provide the name of the snow removal company who was responsible for maintaining the premises."

Plaintiffs served the summons and complaint upon Wal-Mart on March 26, 2012. When Wal-Mart failed to respond, plaintiffs filed a request to enter default on June 22, 2012. A consent order vacating default soon followed, and Wal-Mart filed an answer on July 11, 2012.

A letter from Wal-Mart's counsel dated July 30, 2012 finally provided plaintiffs' attorney with the information he first requested in 2010, namely, that Wal-Mart had contracted with USM for snow removal on the date of the accident; the letter further advised that USM may have subcontracted those services to another entity. The letter also demanded immediate withdrawal of plaintiffs' complaint against Wal-Mart and enclosed a proposed stipulation of dismissal as to Wal-Mart.2 Plaintiffs' counsel signed, but did not date, the stipulation and returned it to counsel for Wal-Mart, who proceeded to file the stipulation with the court on August 27, 2012.

By letter dated August 14, 2012, plaintiffs' counsel notified USM of his intent to amend the complaint adding USM as a defendant, and requested information regarding its liability insurance. On September 17, 2012, plaintiffs' counsel received a copy of a letter from USM's carrier advising MLC (USM's subcontractor) of plaintiffs' claim and demanding that it defend and indemnify USM under the terms of the subcontractor agreement between USM and MLC.

On or about October 23, 2012, plaintiffs' counsel submitted a motion for leave to file an amended complaint to substitute USM and MLC as defendants in the place of John Doe defendants from the original complaint. On November 1, 2012, the court returned the complaint, explaining the case had been closed on August 27, 2012, pursuant to "a stipulation dismissing the only defendant with prejudice."

Plaintiffs then filed a motion to reinstate the complaint and again requested leave to file an amended complaint. The motion was denied, and this appeal ensued.

II.

Rule 4:37-1 provides in pertinent part:

(a) . . . an action may be dismissed by the plaintiff without court order by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs; or by filing a stipulation of dismissal specifying the claim or claims being dismissed, signed by all parties who have appeared in the action. . . .

 

(b) Except as provided by paragraph (a) hereof, an action shall be dismissed at the plaintiff's instance only by leave of court and upon such terms and conditions as the court deems appropriate.

 

Without a court order, a plaintiff can dismiss "only 'before service by the adverse party of an answer' or other responsive pleading[,]" Sec. Nat'l Partners v. Mahler, 336 N.J. Super. 101, 104 (App. Div. 2000) (quoting R. 4:37-1(a)), certif. denied, 169 N.J. 607 (2001), or with the consent of "all parties who have appeared in the action regarding the claim or claims being dismissed[.]" Hansen v. Hansen, 339 N.J. Super. 128, 136 (App. Div. 2001). Significantly, the Rule only allows a plaintiff to file a notice or stipulation of dismissal.3

Because Rule 4:37-1(a) only permits a plaintiff to file a stipulation of dismissal, we are satisfied the stipulation filed by counsel for Wal-Mart was improvidently entered. Thus we conclude the trial court erred by not vacating the improperly filed stipulation. Rule 1:13-1, regarding clerical errors, provides:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal.

 

Upon remand, the court shall vacate the stipulation of dismissal and permit plaintiffs leave to file and serve their amended complaint.

Reinstatement of the complaint does not preclude respondents from asserting any affirmative defenses, including the statute of limitations. By this statement, we do not suggest that any such defenses have merit or lack merit.

Reversed and remanded. We do not retain jurisdiction.

 

 

 

 

 

 

 

 

1 Baker's wife, Lula, is a plaintiff on a per quod claim.

 

2 The stipulation provided that "the parties hereby understand, stipulate and agree that . . . all claims and cross-claims against [d]efendant, Wal-Mart Stores, Inc. are hereby dismissed with prejudice, without costs[,]" and made no mention of the fictitious defendants.

3 Plaintiffs' counsel understandably did not sign and file the stipulation as he knew he would add respondents as named defendants in place of the John Doe defendants. With the benefit of hindsight, plaintiffs' counsel should have advised Wal-Mart's counsel, upon receiving the stipulation of dismissal, that he would seek dismissal of Wal-Mart as part of his motion to amend.