KELBY SMITH v. MICHAEL NOWAK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0001-12T3

KELBY SMITH,

Plaintiff-Appellant,

v.

MICHAEL NOWAK and SLAVICA

NOWAK,

Defendants-Respondents.

______________________________________

March 14, 2014

Submitted February 3, 2014 Decided

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2466-11.

Haddad Law Offices, attorneys for appellant (Kenneth C. Ho, on the brief).

Respondents have not filed a brief.

PER CURIAM

Plaintiff Kelby Smith appeals from an order entered by the Law Division on June 15, 2012, which denied his motion to reinstate his complaint, and an order entered on July 30, 2012, denying his motion for reconsideration. For the reasons that follow, we reverse.

On May 23, 2011, plaintiff filed a complaint in the trial court, in which he alleged that on May 23, 2009, he was driving a motor vehicle in Paterson, New Jersey. He claimed that, at that time, defendant Michael Nowak was driving a vehicle owned by defendant Slavica Nowak.

In count one of the complaint, plaintiff alleged that Michael Nowak drove his vehicle in a negligent, careless and reckless manner, by making a left turn in front of plaintiff's motor vehicle, causing a collision between the vehicles. Plaintiff claimed that he sustained personal injuries in the accident.1

On December 9, 2011, the court dismissed the complaint as to Michael and Slavica Nowak pursuant to Rule 1:13-7(a), for lack of prosecution. It appears that plaintiff had not filed a proof of service with the court as to these defendants. See R. 1:13-7(b)(1) (stating that filing of proof of service is a "required proceeding" that must be timely taken to avoid dismissal for lack of prosecution).

On May 17, 2012, plaintiff filed a motion pursuant to Rule 1:13-7(a) to reinstate the complaint. In support of the motion, plaintiff submitted a certification of counsel in which he stated that Slavica Nowak was served on January 2, 2012, and Michael Nowak was served on January 4, 2012.

Counsel stated that service on these defendants was good cause for reinstatement of the complaint, pursuant to Rule 1:13-7(a). Counsel also stated that, if a showing of exceptional circumstances was required, "sufficient circumstances exist" for reinstatement since defendants were not served earlier "despite [p]laintiff's best efforts."

Copies of various documents were attached to counsel's certification, including a copy of the police report concerning the accident, which stated that, at the time of the accident, the Nowaks resided at an address in Garfield, New Jersey. Also attached to the certification were copies of affidavits indicating that the summons and complaint were served on defendants.

The trial court denied the motion on June 15, 2012. It appears that the motion was not opposed and the motion was decided on the papers. On the order, the judge wrote that plaintiff had not shown exceptional circumstances warranting reinstatement of the complaint as to the Nowaks.

On July 9, 2012, plaintiff filed a motion for reconsideration of the June 15, 2012 order. In support of this motion, plaintiff submitted another certification of counsel. He stated that the police report indicated that the Nowaks resided at an address in Garfield, and "[a]ll attempts to contact or serve defendants at that address were unsuccessful."

Counsel stated that he requested that an investigator search the records of the New Jersey Division of Motor Vehicles to ascertain the addresses at which the Nowaks could be served. A report dated December 9, 2011, indicates that the search was then in progress and the results would be provided upon completion of the search.

Counsel said that "thereafter" it was revealed that the Nowaks had moved to an address in Hopatcong. Counsel stated that Michael Nowak was served on January 2, 2012, and Slavica Nowak was served on January 4, 2012. Affidavits of service were filed with the court on January 13, 2012.

Counsel stated that good cause and exceptional circumstances had been established for reinstatement of the complaint. He said that

[t]he factors that the [c]ourt should consider are that the company hired to serve the [summons and complaint] on defendants was unable to make contact until January 2, 2012 because the defendants moved and this office despite reasonable efforts had trouble finding their new address; this firm believed the procedure to stave off dismissal had been fulfilled and no prejudice exists with regard to [d]efendants Michael Nowak and Slavica Nowak as to date the defendant[s] ha[ve] taken no steps to defend themselves with regard to this matter.

In his certification, counsel cited various cases as providing support for the motion, including Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007). Counsel argued that the case law permits reinstatement if the delay was not lengthy, the defendant was not prejudiced and the plaintiff is "completely innocent."

Counsel additionally stated that defendants suffered no prejudice from the delay in seeking reinstatement because defendant's insurance carrier had been provided with the police report and all medical reports, records and bills. Counsel said that the insurer had offered a settlement but withdrew the offer before this lawsuit was filed.

The trial court considered the motion on July 30, 2012. It appears that the motion was not opposed, and it was decided on the papers. The court entered an order dated July 30, 2012, denying the motion. On the order the court wrote:

Application is denied. Movant has failed to show the court's original decision was based on plainly incorrect reasoning or that there was evidence the court failed to consider evidence or there is new information that the court should consider. Reliance on Ghandi v. Cespedes is misplaced. That case involved a single defendant. Also that case was decided prior to [Rule] 1:13-7(a) [being] amended.

Plaintiff appeals and argues that his complaint should have been reinstated. Plaintiff contends that he established good cause and extraordinary circumstances for reinstatement of the complaint.

Rule 1:13-7(a) provides, with certain exceptions not applicable here, that when a civil action has been pending for four months, the court shall issue a written notice to plaintiff that the action will be dismissed without prejudice as to any and all defendants 60 days after the date of the notice, unless one of the actions specified in subsection (c) of the rule is taken. Proof of service or acknowledgement of service filed with the court is one of the actions specified in subsection (c) that must be taken to avoid dismissal. R. 1:13-7(c)(1).

Rule 1:13-7(a) further provides that, after dismissal,

reinstatement of an action against a single defendant may be permitted on submission of a consent order vacating the dismissal and allowing the dismissed defendant to file an answer, provided the proposed consent order is accompanied by the answer for filing, a case information statement, and the requisite fee. If the defendant has been properly served but declines to execute a consent order, plaintiff shall move on good cause shown for vacation of the dismissal. In multi-defendant actions in which at least one defendant has been properly served, the consent order shall be submitted within 60 days of the order of dismissal, and if not so submitted, 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. . . .

Here, the trial court dismissed plaintiff's complaint on December 6, 2011, for lack of prosecution. As we have explained, plaintiff had endeavored to serve the Nowaks at their Garfield address but could not do so, apparently because they had moved. Shortly after the court dismissed the action, plaintiff's counsel took steps to locate the Nowaks and they were served in early January of 2012.

Had counsel promptly filed a motion for reinstatement after defendants were served, plaintiff would have been subject to the good cause standard in Rule 1:13-7(a). However, counsel did not file the motion until May 17, 2012, which was more than 90 days after the date the complaint was dismissed. Therefore, plaintiff became subject to the exceptional circumstances standard for reinstatement.

As the trial court noted in its order denying reconsideration, Ghandi v. Cespedes dealt with reinstatement of a complaint under the former version of Rule 1:13-7(a), which permitted reinstatement of a dismissed complaint by consent order and otherwise only "on motion for good cause shown." Ghandi, supra, 390 N.J. Super. at 196. In that case, the plaintiff brought an action against the defendants, asserting claims arising from a motor vehicle accident. Id. at 195. The plaintiff served the complaint, but the defendants did not file an answer. Ibid. The plaintiff's attorney prepared a request for entry of default, but inadvertently failed to file it. Ibid.

The trial court dismissed the complaint for lack of prosecution, pursuant to Rule 1:13-7(a). Ibid. More than a year later, the plaintiff's attorney filed a motion to reinstate the complaint, and the defendants did not oppose the motion. Ibid. The court determined that the plaintiff had not established good cause to reinstate the complaint because the plaintiff had not shown why the matter was allowed to remain dismissed for fifteen months. Ibid. After the trial court denied reconsideration, the plaintiff appealed. Ibid.

We stated that the term "good cause" as used in the rule was "amorphous" and required the exercise of discretion, in light of the relevant facts and circumstances and the purposes for which the rule was being applied. Id. at 196. We noted that Rule 1:13-7(a) is an administrative rule that is "'designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion.'" Ibid. (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989)).

We pointed out that dismissals pursuant to the rule are without prejudice. Ibid. Thus, the right to reinstatement should ordinarily be "'routinely and freely granted when plaintiff has cured the problem that led to the dismissal even if the application is made many months later.'" Ibid. (quoting Rivera v. Atl. Coast Rehab. Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999)).

We held that the trial court had mistakenly exercised its discretion by denying the plaintiff's motion for reinstatement. Id. at 197. We stated that the delay was due to the "transgressions" of counsel and the plaintiff was without fault. Ibid. We noted that the defendants had not objected to reinstatement and were ready to file an answer and move the case forward to resolution on the merits. Ibid.

Here, the trial court correctly noted that, after Ghandi was decided, Rule 1:13-7(a) had been amended to require a showing of "exceptional circumstances" for the reinstatement of a complaint as to a defendant in a multi-party action, where the motion for reinstatement is made more than ninety days after the date of the order of dismissal. The court erred, however, in finding that the circumstances were not sufficiently "exceptional" to warrant relief under the rule.

As we indicated previously, plaintiff's counsel acted expeditiously to address the reasons why the complaint was dismissed as to the Nowaks, and they were served less than thirty days after the dismissal. Counsel did not explain why he delayed in filing the motion for reinstatement, but there is no indication plaintiff played any role in the delay. The delay was brief, and there is no claim that defendants would be prejudiced by reinstatement of the complaint. Indeed, it appears that defendants did not oppose the motion to reinstate the complaint, or the motion for reconsideration.

Furthermore, as we explained in Ghandi, the purpose of the rule is to clear the docket of cases that cannot be prosecuted to completion. Ghandi, supra, 390 N.J. Super. at 196. The rule's requirement that a plaintiff in a multi-party action establish exceptional circumstances for reinstatement is apparently based on the concern that, in such a case, discovery as to non-dismissed defendants may have proceeded, and "vacation of the dismissal has the capacity of substantially delaying all further proceedings." Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 1:13-7(a) (2014). That concern is not present here.

Moreover, in assessing whether plaintiff established exceptional circumstances for reinstatement of the complaint, the court should have considered the fact that the dismissal here, while without prejudice, may effectively bar plaintiff from pursuing his claim because the statute of limitations has run. "'[T]here is a general disinclination to invoke the ultimate sanction of dismissal where the statute of limitations has run.'" Ghandi, supra, 390 N.J. Super. at 198 (quoting Mason, supra, 233 N.J. Super. at 268-69).

We are therefore convinced that viewing the relevant facts, the purpose of the rule, and the lack of prejudice to defendant, the circumstances are sufficiently exceptional to warrant reinstatement of the complaint. Even if not exceptional, the circumstances are such that the court should have exercised its discretion under Rule 1:1-2 and relaxed the requirements of the rule to allow reinstatement of the complaint. Ghandi, supra,

390 N.J. Super. at 197-98.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 We note that, in count two, plaintiff alleged that his automobile insurer, GEICO Insurance, wrongfully refused to pay him uninsured motorist benefits. However, GEICO was not named as a defendant in the caption, and there is no indication that plaintiff ever served GEICO with the summons and complaint.