MARK NEWTON and ANDREA NEWTON v. NEWARK STAR-LEDGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARK NEWTON and ANDREA NEWTON,

Plaintiffs-Appellants,

v.

NEWARK STAR-LEDGER, NEWARK MORNING

LEDGER AND ALL PARENT OWNERSHIP,

CORPORATIONS, DAVID TUCKER, IN HIS

PROFESSIONAL CAPACITY BOTH AS EDITOR

AND INDIVIDUALLY, AND BARRY CARTER,

REPORTER BOTH IN HIS PROFESSIONAL

CAPACITY AND INDIVIDUALLY,

Defendants-Respondents.

____________________________________

June 8, 2016

Argued May 31, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8219-13.

Mark Newton and Andrea Newton, appellants, argued the cause pro se.

Michael J. Gesualdo argued the cause for respondents (Robinson Miller LLC, attorneys; Mr. Gesualdo and Keith J. Miller, on the brief).

PER CURIAM

Pro se plaintiffs Mark Newton (Mark)1 and Andrea Newton (Andrea), brought a defamation action against defendant Newark Morning Ledger, publisher of the Star-Ledger Newspaper, its editor, defendant David Tucker, and a reporter, defendant Barry Carter, relating to two published articles concerning plaintiffs. Plaintiffs appeal from the February 28, 2014 Law Division order, which granted defendants' motion pursuant to Rule 4:6-2(e) and dismissed the complaint with prejudice. For the following reasons, we reverse and remand.

The record reveals the following facts. On October 24, 2012, the Star-Ledger published an article entitled, "Tenant who wouldn't leave finally gets the boot[.]" A second article, posted on NJ.com., was entitled, "Carter: Notorious Newark tenant finally evicted after hassling landlords for years[.]" Both articles concerned a landlord-tenant dispute between plaintiffs and Wells Fargo Bank and the court's decision in that matter.

On October 15, 2013, plaintiffs filed a complaint against defendants, alleging defamation and libel. In lieu of filing an answer, on February 10, 2014, defendants filed a motion to dismiss with prejudice pursuant to Rule 4:6-2(e), returnable on February 28, 2014. The caption of the motion bore only Mark's name, it was addressed only to Mark, and defense counsel's certification of service stated that copies of the motion papers were served on Mark by certified mail only at the address indicated for service upon him. Counsel submitted no certification of service as to Andrea.

On February 28, 2014, the court entered an order dismissing the complaint with prejudice, indicating that the motion was "unopposed." Although the caption of the order bore only Mark's name, it dismissed the complaint as to Andrea as well.

On March 4, 2014, defendants served the order on Mark, but not Andrea. Mark received the order on March 11, 2014, and apparently showed it to Andrea. Mark immediately advised the court that he was never served with the motion and requested reconsideration and an order vacating the February 28, 2014 order. Andrea advised the court that she was never served with the motion or the February 28, 2014 order. The court responded to Mark and defense counsel, but not Andrea, and directed counsel to provide proof of service of the motion on Mark.

In accordance with the court's instructions, defense counsel submitted a certification from his office assistant. Attached thereto was a certified mail return receipt, which showed that the certified mail was delivered to Mark and Andrea on March 13, 2014. Contrary to counsel's certification of service submitted with the motion papers, his office assistant claimed that she served Mark and Andrea on February 10, 2014, via regular mail. The court did not reconsider or vacate the February 28, 2014 order. This appeal followed.

On appeal, plaintiffs raise procedural arguments relating to service of the motion, and substantive arguments relating to dismissal of their complaint. We focus on the procedural arguments.

"[A] notice of motion shall be filed and served not later than [sixteen] days before the specified return date unless otherwise provided by court order, which may be applied for ex parte." R. 1:6-3(a). "In all civil actions, unless provided by rule or court order . . . written motions . . . shall be served upon . . . parties appearing pro se." R. 1:5-1(a). "The service requirement is mandatory, and failure to comply will preclude certain consequences that could otherwise flow from the entry of an order, such as eventual entry of a dismissal with prejudice." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:5-1 (2016).

Service of a motion on an attorney differs from service on a party. Service on an attorney shall be made by mailing the motion to his or her office, handing it to the attorney, or by leaving it with an employee at the attorney's office. R. 1:5-2. Service on a party "shall be made as provided by R[ule] 4:4-4 or by registered or certified mail, return receipt requested, and simultaneously by ordinary mail to the party's last known address." Ibid. "[S]ervice on a party by simultaneous certified and regular mail constitutes good service even if the party refuses to claim the certified mail." Pressler & Verniero, supra, comment on R. 1:5-2 (citation omitted).

Proof of service of a motion may be made "by a certification of service appended to the paper to be filed and signed by the attorney for the party making service." R. 1:5-3. "If service has been made by mail the . . . certification shall state that the mailing was to the last known address of the person served . . . [and] shall state . . . the name and address of any pro se party." Ibid. The certification "shall be filed with the court promptly and in any event before action is to be taken on the matter by the court." Ibid. The failure to file proof of service "will raise an inference that service pursuant to R[ule] 1:5-1 was not made." Pressler & Verniero, supra, comment on R. 1:5-3 (citation omitted).

Rule 1:6-3(c), not Rule 1:5-4, governs the completion of service of motions. See R. 1:5-4(b) (excepting motions from the provisions of Rule 1:5-4(b)).2 For purposes of Rule 1:6-3, service of a motion on a pro se litigant is deemed complete "only on receipt at the . . . address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing." R. 1:6-3(c).

As we have stated, Rule 1:5-1(a) requires service of motions on all parties appearing pro se in civil actions. Andrea did not appear on the caption of the motion, the motion was not addressed to her, and defense counsel provided no proof of service on her. Failure to file a proof of service raised an inference that Andrea was not served as required by Rule 1:5-1, an inference which defendants did not overcome. Defendants' failure to serve Andrea precluded the entry of a dismissal with prejudice as to her.

As for Mark, Rule 1:6-3(a) required service of the motion on him by February 12, 2014, sixteen days before the February 28, 2014 return date. Because defendants chose to serve Mark by mail, Rule 1:5-2 required them to serve him by registered or certified mail and simultaneously by ordinary mail. Mark was only served by certified mail, and for some unknown reason, he did not actually receive it until March 13, 2014. Accordingly, service on Mark was deemed complete on March 13, 2014, well after the sixteen-day deadline and after entry of the February 28, 2014 order. The failure to properly and timely serve Mark precluded the entry of a dismissal with prejudice as to him.

For these reasons, we reverse the February 28, 2014 order, reinstate the complaint, and remand this matter to the trial court. Defendants may re-file their motion to dismiss pursuant to Rule 4:6-2(e). If defendants choose to serve plaintiffs by mail, they must serve each plaintiff by simultaneous certified and ordinary mail, and defense counsel must file a proof of service as to each plaintiff in accordance with Rule 1:5-3. Service by simultaneous certified and ordinary mail shall constitute good service even if plaintiffs refuse to claim the certified mail. If plaintiffs refuse to claim or inexcusably delay claiming the certified mail, service shall be deemed complete on the third business day after the ordinary mailing.

Having reached this determination, we need not address plaintiffs' substantive arguments.

Reversed and remanded. We do not retain jurisdiction.

1 We use the parties' first names for ease of reference. We shall sometimes collectively refer to Mark and Andrea as plaintiffs.

2 Accordingly, Rule 1:5-4(b) and New Century Fin. Servs. v. Nason, 367 N.J. Super. 17 (App. Div. 2004), on which plaintiffs rely, are inapplicable.