DENNIS F. ANDERSON v. ALUMINUM SHAPES L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DENNIS F. ANDERSON,

MIGUEL A. BAEZ, TYRONE

BARRINGER, HECTOR BERRIOS,

LUIS R. CANADA, DEMETRIO

CARRION, MANUEL E. CAVALIE,

YOURM CHHORM, MANOLO COLON,

PAPINO CONCEPCION, WILFREDO

CORTES, JOEL DAVILA, ANGEL

B. GOMEZ, DAVE JOHANN, STEVEN

JOHNSON, REGINALD LEGGETT,

ROBBER MAKINS, LUIS A. MALDONADO,

TOMAS R. MARRERO, JOSE A. ROMAN,

WILFREDO A. RUIZ, MANUEL J. SANCHEZ,

EDWIN SANTIAGO, OSCAR SEQUEIRA,

JULES STRATTON, MILTON STRATTON,

JOSE TORRES, SERGIO VELAZQUEZ,

ROBERT WAGNER, JOSE A. MERCADO

and JOSEPH K. PHAM,

Plaintiffs-Appellants,

v.

ALUMINUM SHAPES, L.L.C.,

Defendant-Respondent,

and

GLOBAL ALUMINUM, INC.

AND THE INDUSTRIAL WORKERS

UNION LOCAL 837,

Defendants.

___________________________________________________

September 22, 2016

Submitted July 26, 2016 Decided

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1810-13.

John A. Klamo, attorney for appellants.

Ballard Spahr, L.L.P., attorneys for respondent (Denise M. Keyser and Steven D. Millman, on the brief).

PER CURIAM

On April 29, 2013, nineteen plaintiffs filed a complaint in the Law Division, naming as defendants Aluminum Shapes, L.L.C. (Shapes), Global Aluminum, Inc. (Global), a California corporation (collectively, defendants), and the Industrial Workers Union Local 837 (the Union). Plaintiffs alleged they were employed by Shapes and terminated "en masse" without cause. They alleged breach of contract, wrongful termination, violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. 621 to 634, violation of the Millville Dallas Airmotive Plant Job Loss Notification Act, N.J.S.A. 34:21-1 to -7, and other causes of action. The complaint alleged defendants "collusively and unlawfully conspired to structure an agreement for purchase without honoring the existing obligations of . . . Shapes." It further alleged the Union "collusively and unlawfully conspired with" defendants.

Shortly after the complaint was filed, plaintiffs' counsel was suspended from the practice of law for three months, commencing on May 27, 2013. In the interim, on July 31, an amended complaint was filed by successor counsel adding additional plaintiffs.1

On September 18, 2013, the court sent notice advising that, pursuant to Rule 1:13-7 (the Rule), the complaint would be dismissed without prejudice in sixty days for lack of prosecution.2 On October 30, successor counsel withdrew and plaintiffs' original counsel substituted as counsel of record. There having been no steps taken in the interim to stave off dismissal under the Rule, see Rule 1:13-7(b), the court's computer-generated notice dismissing the complaint was filed on November 15.

Nine months later, on August 14, 2014, plaintiffs moved to reinstate the complaint. Plaintiffs sought reinstatement to serve a "third amended complaint [] and/or [e]ntry of [d]efault." Counsel's certification stated only the procedural history outlined above, and that "[s]ervice will be made upon reinstatement." The judge entered an order on September 5, 2014, denying the motion, writing on the order that "plaintiff[s] may file to reinstate AFTER service is accomplished."

On September 12, plaintiffs served the summons and complaint upon Shapes.3 Counsel for defendants responded with a letter dated October 24, 2014, indicating that "the case has not been reinstated[,] the [c]omplaint remains dismissed[,]" and defendants were "under no obligation to respond . . . at this time."

On November 3, 2014, plaintiffs filed a second motion to reinstate the complaint. Counsel's certification in support was essentially unchanged from that in support of the first motion, adding only that service of the complaint upon Shapes had been made and acknowledged.

In a letter to the court dated November 18, 2014, defense counsel advised that plaintiffs' motion had never been served, and that she became aware of it only by checking the court's docket. The motion was apparently adjourned, and defendants filed opposition to the motion, arguing plaintiffs failed to demonstrate "exceptional circumstances" warranting reinstatement of the complaint. Furthermore, and alternatively, defendants contended the complaint should not be reinstated as to Global because it had never been served. On December 17, 2014, the judge denied plaintiffs' motion to reinstate, handwriting on the order (the December 2014 order) "[n]o exceptional circumstances [were] shown as required by [the Rule]."

On April 2, 2015, plaintiffs sought reconsideration. Although he had filed the motion for reinstatement in November 2014, and had received defendants' opposition, counsel certified that he had "never received notice" of the December 2014 order. He never sought information about the disposition of the motion, but rather only discovered the order's existence by examining the court's docket to see if Shapes had filed an answer. He stated that although Rule 4:49-2 required a motion for reconsideration to be filed within twenty days of service of the order, an exception was provided by Rule 1:13-1, which permitted "[c]lerical mistakes" to be corrected at any time.4

Counsel further claimed that he had no reason to believe the motion for reinstatement would be denied because the parties had entered into a stipulation filed with the court on December 17, 2014 (the stipulation), in which Shapes withdrew its opposition to the motion, and plaintiffs dismissed their complaint against Global with prejudice.5 According to plaintiffs' counsel, his clients had "been unfairly prejudiced by a mistake outside of [their] control and deserve[d] to have" their motion for reinstatement of the complaint reconsidered.

Defendants opposed the motion arguing it was untimely. They noted an exhibit attached to the motion revealed that as of March 4, 2015, counsel knew the motion for reinstatement had been denied in December, but plaintiffs failed to move for reconsideration until one month later. Defendants further argued there was no legal basis for reconsideration of the December 2014 order.

After oral argument and without specifically deciding whether the motion was timely, the judge noted that plaintiffs relied upon three events to demonstrate exceptional circumstances supporting reinstatement of the complaint counsel's suspension, alleged inattention by successor counsel during the suspension and defendants' stipulation withdrawing Shape's opposition to the reinstatement motion and permitting dismissal of the complaint against Global. The judge found these circumstances, individually and collectively, were not exceptional and denied the motion for reconsideration by order dated May 1, 2015. This appeal followed.

Before us, plaintiffs argue the judge abused his discretion by applying the exceptional circumstances standard of the Rule, and he should have considered the lack of any prejudice to Shapes or, alternatively, should have relaxed the Rule in the interests of justice.

Shapes reiterates the arguments made in the Law Division. It also contends that plaintiffs admitted before the Law Division judge that the exceptional circumstances standard was appropriate, and they cannot argue for the first time on appeal that it was not. See, e.g., Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Having considered these arguments in light of the record, we affirm for reasons other than those expressed by the judge. See, e.g., Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) ("[A]ppeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion.").

Initially, we note that the appeal is only from the May 1, 2015 order denying reconsideration. See W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review."); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002). Any appeal from the December 2014 order is untimely.

Motions for reconsideration are addressed to "'the sound discretion of the Court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Reconsideration is to be utilized narrowly, and reserved for situations where the court relied "'on plainly incorrect reasoning[,]'" where the court failed to consider probative, competent evidence, or where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005) (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, Comment 2 on R. 4:49-2 (2005)). Rule 4:49-2 requires that a motion for reconsideration "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred . . . ."

The only additional information supplied in support of the motion for reconsideration was the parties' stipulation in which Shapes agreed not to oppose the motion for reinstatement and plaintiffs agreed to dismiss the complaint against Global with prejudice. In all other respects, plaintiffs' motion for reconsideration was a repackaged version of the earlier, second motion to reinstate the complaint.

Most importantly, Rule 4:49-2 requires the motion to be "served not later than [twenty] days after service of the . . . order upon all parties by the party obtaining it." (Emphasis added). "Neither the parties nor the court may . . . enlarge the time specified by . . . R. 4:49-2." R. 1:3-4(c). As noted, the judge did not specifically decide whether the motion was timely.

However, the judge found that the December 2014 order was in fact sent to plaintiffs' counsel, noting "our records show that it was sent." Plaintiffs' counsel was, therefore, appropriately "served" with the December 2014 order. See R. 1:5-2 (providing the manner for service of orders upon an attorney). The mandatory twenty-day time limit contained in Rule 4:49-2 began then, and plaintiffs' May 2015 motion for reconsideration was untimely.

The judge nevertheless assumed arguendo that "the delivery process was inaccurate." However, he noted, as we do, that plaintiffs' motion for reconsideration included a "snapshot" of the court's automated docket as of March 4, 2015, which showed entry of the December 2014 order. During oral argument, plaintiffs' counsel did not deny that he had actual knowledge of the December 2014 order as of March 4, 2015, admitting to the judge, "[t]echnically, I was beyond the [twenty] days no matter what."

Under these circumstances, the motion for reconsideration was untimely. We affirm the order under review.

1 As filed, the amended complaint included only ten additional plaintiffs, however, without explanation in the record, the final caption used by plaintiffs' counsel in orders submitted to the court reflects a total of twelve new plaintiffs, all of which we include in our caption.

2 The notice and order of dismissal were premised upon the lack of service of the complaint upon any defendant in the action.

3 Shapes subsequently noted that the complaint was served upon its Director of Human Resources, not someone upon whom proper service could be effectuated. See Rule 4:4-4(a)(6).

4 It is clear that there was no "clerical mistake" as contemplated by Rule 1:13-1. See, e.g., Borromeo v. DiFlorio, 409 N.J. Super. 124, 140 (App. Div. 2009) (giving examples of the rule's proper applications).

5 According to the court's docket, the complaint against Global was dismissed with prejudice on December 17, 2014. Plaintiffs concede that the Union was never served, although they indicate no intention to pursue their claim against it.