ALLIED STEEL DISTRIBUTION & SERVICE v. STIRRUP METAL PRODUCTS CORP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4774-11T2

ALLIED STEEL DISTRIBUTION &

SERVICE,

Plaintiff-Respondent,

v.

STIRRUP METAL PRODUCTS CORP.,

Defendant-Appellant.

__________________________________

March 22, 2013

Submitted February 5, 2013 - Decided

Before Judges Lihotz and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-038892-10.

Law Office of Ellen O'Connell, L.L.C., attorney for appellant.

Kathleen R. Wall, attorney for respondent.

PER CURIAM

Defendant appeals from the denial of a motion for reconsideration. A default judgment was entered against defendant in plaintiff's Special Civil Part collection action. Defendant moved to vacate the judgment, which the court denied by order entered November 18, 2011. Defendant did not formally move for reconsideration until March 13, 2012. The court denied the motion as untimely. We affirm.

We discern the following facts from the record. In December 2010, Allied Steel Distribution & Service (Allied) filed a book account claim against Stirrup Metal Products Corp. (Stirrup Corp.) alleging it was owed $642.75 for eight pieces of metal, sold and delivered in August 2010. Stirrup Corp. claimed the products were defective.

Todd Stirrup appeared on behalf of defendant, his closely held corporation, see Rule 6:11. Stirrup obtained consent from Allied's attorney, Kathleen Wall, to adjourn the September 27, 2011 trial date. However, Stirrup apparently did not notify the court. As a result, the case remained scheduled. Wall appeared in court on the trial date, along with her client's representative; Stirrup did not. The court entered default. Default judgment was entered a week later on October 4, 2011.

By letter dated October 18, 2011, Stirrup attempted to persuade the court to set aside the judgment. He asserted, "[W]e were never notified by the Essex Special Civil Part Court that a hearing date had been scheduled and[,] therefore[,] did not attend the hearing." He did not address the nature of his defense to the action.

Case management staff advised Stirrup, by a form letter, that his papers were being returned because he was required to file a motion. Stirrup then promptly filed a notice of motion, with supporting certification dated October 25, 2011, in which he explained defendant was never notified of the hearing date and, therefore, did not attend the hearing. Allied filed a formal response to Stirrup's letter, and the court denied the motion with no statement of reasons on November 18, 2011.

Wall served the November 18, 2011 order on Stirrup Corp. by certified and regular mail on December 13, 2011. There is no dispute that the order was received shortly thereafter, as Stirrup responded by sending another letter to the court, dated December 19, 2011, requesting reconsideration of the November 18 order. It is unclear whether Stirrup served this letter on Wall, as it does not bear a "cc." Stirrup did not file a formal motion. Stirrup received no response to his letter.

Allied executed on its judgment in February 2012. Stirrup Corp. then filed a formal motion to reconsider the November 18, 2011 order denying the motion to vacate the default judgment. The motion was accompanied by Stirrup's certification stating he was unaware the court was going to hear the case on October 4, 2011 Stirrup was apparently referring to the date of entry of the order, as opposed to the September 27, 2011 trial date and that he had a valid defense to the claim, because "the steel was defective and we returned the steel to the Plaintiff." On April 27, 2012, the court entered an order denying the motion, stating it was out of time pursuant to Rule 4:49-2.

This appeal followed. Stirrup Corp. argues its motion for reconsideration was timely filed based on the date of Stirrup's December 19, 2011 letter. Stirrup Corp. also argues, on the merits, that the default judgment should be vacated.

We are unpersuaded. A motion for reconsideration shall be served no later than twenty days after service of the judgment order. R. 4:49-2. The time period may not be enlarged. R. 1:3-4. Stirrup Corp. filed its motion to reconsider in March 2012, three months after it was served with the order denying its motion to vacate the default judgment. It therefore was out of time.

Although courts may relax court rules for a self-represented litigant to avoid the denial of fundamental due process, it may not extend greater rights to such litigants than those who are represented. Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982). If litigants choose to represent themselves, "they must understand that they are required to follow accepted rules of procedure promulgated by the Supreme Court to guarantee an orderly process." Id.at 241-42 (citation and quotation omitted). "Procedural rules are not abrogated or abridged by [a party's] pro se status." Rosenblum v. Borough of Closter, 285 N.J. Super.230, 241 (App. Div. 1995), certif. denied, 146 N.J.70 (1996).

In this matter, Stirrup sent correspondence to the court. However, a letter is not a motion. SeeR.1:6-2 (stating "[a]n application to the court for an order shall be by motion," and describing the prerequisites of a motion). Notwithstanding defendant's argument to the contrary, it was not incumbent upon the court to treat defendant's letter as if it were a motion, particularly under the circumstances presented. In October 2011, the court clerk's office had informed Stirrup he was required to file a formal motion in order to obtain court action. He complied in October. Nonetheless, he sought reconsideration by letter on December 19, 2011, a procedure he had been cautioned was improper. Also, there is no evidence in the record that Stirrup Corp. even served the letter on Allied.

Affirmed.