KATHRYN CLARE v. CARL J. SENFT, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KATHRYN CLARE,

Plaintiff-Appellant,

v.

CARL J. SENFT, M.D. and

MARK K. LISTER, M.D.,

Defendants-Respondents.

_______________________________

February 24, 2014

 

 

Before Judges Sapp-Peterson and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5597-11.

 

Christina Vassiliou Harvey argued the cause for appellant (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Michael D. Schottland, of counsel; Ms. Harvey, on the brief).

 

Fred Hughes argued the cause for respondent Carl J. Senft, M.D. (Reiseman, Rosenberg, Jacobs & Heller, P.C., attorneys; Mr. Hughes, of counsel; Brooke Lichtenstein, on the brief).

 

Peter V. LaGregor argued the cause for respondent Mark K. Lister, M.D. (Orlovsky, Moody, Schaaff & Conlon, L.L.C., attorneys; Alison G. Deaner, on the brief).

 

PER CURIAM

Plaintiff Kathryn Clare seeks to vacate an order denying her request to reinstate her professional negligence complaint against defendants Carl J. Senft, M.D. and Mark K. Lister, M.D., administratively dismissed pursuant to Rule 1:13-7.1 We reverse the order dated November 7, 2012 and remand for reinstatement of the action against Dr. Senft.

Plaintiff alleges her injury stemmed from Dr. Senft's failure to properly diagnose acanthamoeba keratitis, a protozoan infection in her left eye. She maintains the condition went untreated for an "extended period," resulting in "severe scarring" and "loss of vision," which ultimately required a corneal transplant.

Plaintiff commenced a search for legal representation to pursue legal redress. We will detail her efforts as presented in certifications filed by plaintiff and her mother.

When her eye condition developed in October 2009, plaintiff was enrolled in an undergraduate program of study in Virginia. She consulted and executed a retainer agreement with William Lane on June 3, 2010. More than a year later, on August 25, 2011, Lane advised he was no longer interested in pursuing the action because expert review suggested only Dr. Senft was negligent. "Mr. Lane did not believe it was worth his time to proceed against only one doctor, even though [plaintiff had] signed a retainer agreement." Lane told plaintiff to seek alternative representation.

Plaintiff next consulted with Matthew R. Mendelsohn, who also declined to accept the case. Mendelsohn informed plaintiff the statute of limitations would expire in December 2011 and suggested she act to preserve her "meritorious claim." Specifically, plaintiff asserts Mendelsohn "advised that because the statute of limitations was going to expire in December of 2011 [she] should file a complaint to preserve [her] rights. Mr. Mendelsohn explained to [her] that filing this document would act as an 'extension.'" Mendelsohn sent plaintiff a "sample complaint." On December 5, 2011, plaintiff filed the complaint, "believ[ing] . . . she could toll the statute of limitations" by doing so.

Plaintiff received "a stamped 'filed' copy of [her] complaint," and at that time "did not understand that [she] needed to do anything with the document." She took no additional steps to advance the case and, specifically, did not serve Drs. Senft or Lister.

At the time the complaint was filed, plaintiff was enrolled in graduate school, studying optometry at Pennsylvania College of Optometry, Salus University in Elkins Park, Pennsylvania. She also continued her search for legal counsel and continued medical treatment. Upon the recommendation of her then treating physician, she consulted with "a few Pennsylvania lawyers." She avers each declined representation of a New Jersey action.

On April 22, 2012, a notice was sent to plaintiff's home informing her the case would be dismissed without prejudice on June 20. When she finished her final examinations in mid-May, but before beginning her summer internship, plaintiff called the clerk's office to obtain an explanation of the notice. She spoke with "[a]n official, whose name [she] does not recall," who told her that even if the case were dismissed without prejudice, she would be able to pursue the case upon approval by a judge. In plaintiff's words, the clerk made the process of reinstatement "sound simple" and "indicated that all [she] had to do once [she] found an attorney was to 'get a judge to say okay.'" She noted the court representative did not explain service of the complaint upon defendants would prevent dismissal.

Consequently, plaintiff took no action. She received the final dismissal notice while participating in a four-week clerkship, taking a summer class, and continuing with her medical treatment, including cataract surgery and a corneal transplant. The complaint was dismissed without prejudice on June 22, 2012.

Plaintiff contacted attorney Robert Wines, who referred plaintiff to Michael Schottland, her current counsel. On August 15, 2012, plaintiff consulted with Schottland, who reviewed the file, obtained an affidavit of merit, and moved to reinstate plaintiff's complaint, filing the requisite motion on August 24, 2012. Dr. Senft was personally served with the summons, complaint, and motion that same day.2

Following oral argument the judge reserved his determination. He issued an oral opinion within two weeks. The judge determined plaintiff failed to diligently prosecute her cause of action, choosing to delay timely service upon Dr. Senft in favor of attending graduate school. The judge's decision to deny plaintiff's motion was memorialized in a November 7, 2012 order.

On appeal, plaintiff maintains the judge abused his discretion in not considering all the facts she presented that demonstrated good cause to allow the action to proceed. Plaintiff asserts that although she understood the need to preserve her right by timely filing a complaint, she misunderstood the nature of the administrative dismissal, believing the matter would be permitted to proceed once counsel was hired.

"Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard." Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382-83 (App. Div. 2011) (citations omitted). In our review, we are not bound by the Law Division's legal conclusions or its "'interpretation of the law and the legal consequences that flow from established facts . . .'" Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Rule 1:13-7(a) allows the court to issue a notice informing a party that dismissal of a pending action, which has languished for four months without complying with "required proceeding[s]," will occur in sixty days. Apt to this matter, one "required proceeding" is filing proof the complaint had been served upon the defendant. R. 1:13-7(b)(1). Once dismissed, a complaint may be reinstated. R. 1:13-7(a). To do so, a plaintiff must file a motion, which "shall be granted on good cause shown if filed within 90 days of the order of dismissal[.]" R. 1:13-7(a).

Rule 1:13-7 was "designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion." Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989). The rule seeks "to balance the institutional needs of the judiciary against the principle that a just result should not be forfeited at the hands of an attorney's lack of diligence." Baskett, supra, 422 N.J. Super. at 379. Noting the rule is an administrative tool to control the court's docket, a request for reinstatement "should be viewed with great liberality." Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007).

There is no dispute here that plaintiff's motion for reinstatement of her action is governed by the good cause standard. R. 1:13-7(a). "'Good cause' is an amorphous term, that is, it is difficult of precise delineation." Ghandi, supra, 390 N.J. Super. at 196 (internal quotations and citation omitted). Generally, good cause "'requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied.'" Ibid. (quoting Del. Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002)). Because dismissals under Rule 1:13-7(a) are "without prejudice," "the right to 'reinstatement is ordinarily routinely and freely granted when [the] plaintiff has cured the problem that led to the dismissal even if the application is made many months later.'" Ghandi, supra, 390 N.J. Super. at 196 (quoting Rivera v. Atl. Coast Rehab. Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999)). Our past considerations of this issue reflect a preference for the adjudication of claims on their merits rather than barring "a litigant's way to the courtroom" because of procedural errors. Id. at 198 (internal quotation marks and citation omitted).

In Baskett, thirty-three months passed from the filing of the complaint and its service upon defendant. Baskett, supra, 422 N.J. Super.at 384. The delay in service resulted because prior counsel was "disengaged" and failed to discover service had not been effectuated. Id. at 380, 385. We found "good cause" was shown even where the justifications for the lack of oversight were deemed "meager and incomplete." Id. at 385.

In Ghandi, we reversed an order denying reinstatement filed fifteen months following the complaint's dismissal, arising from counsel's failure to request entry of default. Ghandi, supra, 390 N.J. Super. at 195-96. We noted "the delay in moving to restore was attributable to certain transgressions of plaintiff's counsel, through no fault of [the] plaintiff." Id. at 197. We advised of the need to avoid the harshness of dismissal with prejudice, instructing "absent a finding of fault by the plaintiff and prejudice to the defendant, a motion to restore under the rule should be viewed with great liberality." Ibid.

We emphasize that "where the complaint has been dismissed due to [the] plaintiff's failure to serve the defendant, the purpose of Rule1:13-7(a) is advanced where [the] plaintiff successfully serves the defendant before filing a motion to reinstate the complaint." Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257, 264 (App. Div. 2007) (citing Mason, supra, 233 N.J. Super.at 267). "The court can thus be assured, before granting the motion, [] the defendant has been served and the case can proceed." Ibid.

Early on, plaintiff recognized the need for legal representation and sought counsel. She engaged Lane six months after learning of Dr. Senft's alleged misdiagnosis. Once Lane retracted his representation, she attempted to secure another lawyer, while continuing college in another state and proceeding with medical treatment to resolve her eye condition. Plaintiff expresses her misunderstanding of court process and which procedures caused the deficiency. The delay in service was corrected within sixty-three days following dismissal, well within the rule's designated ninety-day period. In that brief two-month window, she found a lawyer, served defendant, and moved for reinstatement.

Lane's change of heart occurred almost fifteen months after he accepted the case, at a time plaintiff was embarking on her graduate school program. This significant hold up markedly disadvantaged plaintiff. Next, plaintiff relied on advice of a different lawyer, who explained how plaintiff could protect herself until she located a new attorney. Absent from counsel's information, however, was the need to serve the defendants. When plaintiff received the Rule 1:13-7 notice, which should have prompted action, she did decide to complete her school requisites before inquiring about the notification. However, she called the clerk to determine what to do before dismissal was effectuated, believing she understood the necessary procedure allowing her time to find a lawyer. That belief was inaccurate, but the delay caused by that error was very small. Plaintiff further avers she was not told the defect could be cured by serving defendant. Nevertheless, her case was back on track, guided by counsel, approximately two months after the dismissal date. See Stanley v. Great Gorge Country Club, 353 N.J. Super. 475, 485 (Law Div. 2002) ("In light of the policies behind Rule 1:13-7(a), Best Practices, and prior appellate teachings on this subject, it would a appear that correction of the deficiency within a reasonable time after the dismissal suffices to establish good cause.").

Also important, and contrary to the judge's comments, no evidence demonstrated defendant suffered prejudice by the passage of time and the delay in service. SeeBaskett, 422 N.J. Super. at 379, 384-85 (rejecting a defendant's claims of possible prejudice, concluding the speculative "parade of horribles" was insufficient and requiring the prejudice to amount to a tangible detriment to his or her legal defense). The lack of consequential prejudice to defendant weighs in favor of reinstatement. Ibid.

When all facts are critically examined, we conclude the denial of plaintiff's request to reinstate was a misapplication of the court's discretion. We conclude plaintiff's missteps in prosecuting this matter do not warrant dismissal with prejudice. The judge's conclusion that the delay represented plaintiff's "value judgment" to finish school rather than pursue her case, even if true, did not warrant her case be dismissed. We discern plaintiff identified efforts she made to present her claims and recited her reasonable expectations arising from directions received from counsel and the clerk's office. The record reveals plaintiff's "value judgment" was influenced at the very least, by incomplete information or, at most, misinformation.

We cannot overstate the importance of the policy of our courts "favoring the disposition of cases on their merits[.]" Midland Funding LLC v. Albern, __ N.J. Super. __, __ (App. Div. 2013) (slip op. at 2). "It is also axiomatic that pro se litigants are entitled to no less a degree of procedural solicitude than are represented litigants." Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982). Similar to our findings in Baskett, plaintiff's reasonable explanation pertaining to her medical care, schooling, and search for representation, amounted to good cause for the delay. This, together with the absence of prejudice to defendant, militates toward allowing plaintiff's claims to be heard. See Baskett, supra, 422 N.J. Super. at 385 (finding "good cause" even where the plaintiff's justifications for the lack of oversight were deemed "meager and incomplete").

In light of our opinion, we need not address the additional bases cited by plaintiff to afford relief. We reverse the November 7, 2012 order denying plaintiff's motion and remand the matter for reinstatement of her complaint against Dr. Senft. The order denying reinstatement of plaintiff's complaint against Dr. Lister is affirmed.

Affirmed in part and reversed in part.

1 During oral argument, plaintiff effectively conceded she cannot challenge the dismissal of the action against Dr. Lister.

2 Dr. Lister, whose name appears in the original complaint as a defendant, was not served. Because his malpractice carrier is the same as Dr. Senft, Dr. Lister learned of the motion to reinstate the complaint. Dr. Lister filed a cross-motion to dismiss plaintiff's complaint against him, with prejudice. In a separate November 7, 2012 order, the court dismissed the motion as moot, after denying plaintiff's motion to reinstate.