KEISHA DOYLE-BAILEY v. BERGENFIELD SKATING RINK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3154-11T4

KEISHA DOYLE-BAILEY,

Plaintiff-Respondent,

v.

BERGENFIELD SKATING RINK,

ROBERT DILL, MARIANNE DILL,

Their agents, servants and/or

employees, GEORGE SCHMEDES, DJ

ANTONIO a/k/a DJ LA LOVE,

BOROUGH OF BERGENFIELD, COUNTY

OF BERGEN, STATE OF NEW JERSEY,

Defendants,

And

JAMIESHA WOMACK,

Defendant-Appellant.

_____________________________________

April 23, 2013

Submitted April 16, 2013 Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3477-96.

Jamiesha Womack, appellant pro se.

Law Offices of Rosemarie Arnold, attorneys for respondent, (Evan D. Baker, on the brief).

PER CURIAM

Defendant Jamiesha Womack appeals from the January 20, 2012 Law Division order denying her motion to vacate a $1,061,184 default judgment, which was entered on November 22, 2000. We affirm.

I.

In January 1996, Womack assaulted plaintiff Keisha Doyle-Bailey at the Bergenfield Skating Rink, inflicting serious injuries. According to Doyle-Bailey, she was "slashed about [her] face with a utility knife . . ., [which] required over 1000 stiches and [she] sustained permanent scarring." Womack admitted to the motion judge in 2012, "[t]he act was wrong, and I have realized that every day of my life since that day." Womack was convicted of charges related to the assault and was sentenced to a term of imprisonment at the Edna Mahan Correctional Facility for Women.

In April 1996, Doyle-Bailey filed a civil action in the Law Division against Womack and others seeking compensatory damages for the injuries Doyle-Bailey sustained in January 1996. According to a proof of service provided by the Hunterdon County Sheriff's Office, Womack was served with Doyle-Bailey's complaint on November 6, 1997 while she was incarcerated.1 Womack never filed an answer or other responsive pleading to the complaint. Default was entered pursuant to Rule 4:43-1 on December 30, 1997.

One year later, on December 30, 1998, Womack was deposed in connection with the litigation. The deposition was conducted at the correctional facility. Womack did not have legal representation at that time, but Doyle-Bailey and other co-defendants were represented by counsel. Before beginning the deposition, Womack asked, "[b]eing that I don't have no attorney, will any of whatever I answer, will this be held against me"? The following brief colloquy followed:

CO-DEFENDANTS' ATTORNEY: Well, it's a civil lawsuit, so to a degree it might be or it might not be, you are also being sued, and you're in default, so it is possible that yes, it could [a]ffect you

WOMACK: What is default?

CO-DEFENDANTS' ATTORNEY: as a result of a trial and what may happen after trial.

WOMACK: Oh. That's a default?

CO-DEFENDANTS' ATTORNEY: A default is when you're served with legal papers and you fail to answer them within a certain period of time. Okay.

WOMACK: That's because I didn't understand.

CO-DEFENDANTS' ATTORNEY: Okay.

WOMACK: And I got no attorney, too.

CO-DEFENDANTS' ATTORNEY: And you had no attorney to see anyhow, and you are presently incarcerated. Is that correct?

WOMACK: Yes.

Almost two years later, on November 16, 2000, a proof hearing was conducted by the Law Division pursuant to Rule 4:43-2(b). The parties have not provided a transcript of that proceeding. At the conclusion of the proof hearing, as memorialized in the November 22, 2000 order for judgment, the Law Division entered the default judgment in favor of Doyle-Bailey and against Womack for over one million dollars.

Eleven years after that, in late December 2011, Womack filed a motion to vacate the November 22, 2000 default judgment. She claimed, among other things, that the judgment was defective because the summons was not issued within fifteen days of the track assignment, pursuant to Rule 4:4-1 and she was accordingly entitled to relief pursuant to Rule 4:50-1. Womack argued that the failure to issue and serve the summons until more than eighteen months after the filing of the complaint "would be a due process violation" warranting the vacation of the default judgment. After oral argument, Judge Menelaos W. Toskos denied Womack's motion. This appeal followed.

II.

On appeal, Womack presents the following issues for our consideration:

POINT I: PLAINTIFF'S SERVICE OF COMPLAINT MORE THAN SEVENTEEN MONTHS AFTER FILING ACTION IN BERGEN COUNTY SUPERIOR COURT WARRANTS VACATUR OF DEFAULT JUDGMENT BECAUSE THE DELAY WAS IN CONTRAVENTION TO R.4:4-1 AND PLAINTIFF HAS FAILED TO EXPLAIN REASON FOR LENGTH[]Y DELAY.

POINT II: DEFAULT JUDGMENT SHOULD BE VACATED BECAUSE PLAINTIFF HAS FAILED TO PROVIDE EVIDENCE THAT DEFAULT JUDGMENT WAS IN FACT EVER MAILED TO DEFENDANT WOMACK WHILE SHE WAS CONFINED AT THE EDNA MAH[A]N CORRECTIONAL FACILITY.

We do not find these arguments persuasive.

In 1996,2 when the present complaint was filed, Rule 4:4-1 provided as follows:

The plaintiff, the plaintiff's attorney or the clerk of the court may issue the summons. If a summons is not issued within 10 after the filing of the complaint the action may be dismissed in accordance with R. 4:37-2(a). Separate or additional summonses may issue against any defendants.

This provision of our rules of court has consistently been understood as follows: "The time period for issuance of the summons is not jurisdictional and violation thereof will not defeat the action where the defendant is not prejudiced, the complaint is apparently meritorious and the failure is one which is attributable solely to the neglect of plaintiff's attorney." Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:4-1 (2013); Pressler, Current N.J. Court Rules, comment on R. 4:4-1 (1996).

Furthermore, the dismissal sanction embodied in Rule 4:37-2(a) for violation of the timely issuance of a summons is "without prejudice." See Czepas v. Schenk, 362 N.J. Super. 216, 223 (App. Div.), certif. denied, 178 N.J. 374 (2003). In the present case, the summons was issued within the two-year statute of limitations, thereby obviating any putative prejudice by the delay.

Furthermore, Womack has not demonstrated any other prejudice caused by the late issuance of the summons and service of the complaint. This is evident by the colloquy at Womack's 1998 deposition where she was made aware of the litigation against her, and was informed of the existence of the default that had already been entered. Although Womack was perhaps unable to comprehend fully the significance of the entry of a default at that time, the record is barren of any explanation for her failure to learn the fate of the litigation in the ensuing decade. Because Womack could have acted, but chose not to, any claim of prejudice was self-created. In any event, we fail to discern even a scintilla of evidence to demonstrate unfairness, sharp practice, or prejudice. Womack's unjustified inattention to the matter is the most likely explanation for her present circumstances.

Womack's second point presents an issue that she raises for the first time on appeal, that is, "[p]laintiff's failure to provide proof to the trial court that Womack was in fact served with the default judgment motion." Although we have the authority to disregard this newly-minted argument, see, e.g., Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973), we elect to consider it. After doing so, we do not find Womack's contention persuasive.

In support of her argument, Womack cites only Rule 4:43-1, which provides, in pertinent part: "If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process." We have held that "[t]he giving of this notice . . . is considered a matter of fairness. However, neither the rules nor any applicable case law impose a penalty for failure to provide such notice." Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005). Nevertheless, failure to provide the notice "raises an issue that requires examination . . . of whether sufficient excusable neglect was established to permit relief from the judgment under R. 4:50-1(a)." Ibid.

We are satisfied that any failure to properly serve Womack with notice of the entry of default while she was still incarcerated was obviated by the exchange at her deposition one year later concerning the status of the litigation. Moreover, Womack's delay in moving to set aside the default judgment more than a decade later dissipated any excusable neglect engendered by Doyle-Bailey's imperfect notice of the default.

Lastly, Womack fails to advance any persuasive reason why the 2000 default judgment should be nullified under R. 4:50-1(f) more than twelve years after its entry.

Affirmed.

1 The summons was dated October 21, 1997, and received by the Hunterdon County Sheriff one day later.

2 Today, Rule 4:4-1 provides:

The plaintiff, the plaintiff's attorney or the clerk of the court may issue the summons. If a summons is not issued within 15 days from the date of the Track Assignment Notice, the action may be dismissed in accordance with R. 4:37-2(a). Separate or additional summonses may issue against any defendants.