ALLYSON WALLACE v. STARKIST

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3131-18

ALLYSON WALLACE,

          Plaintiff-Appellant,

v.

STARKIST,

     Defendant-Respondent.
________________________

                   Submitted December 7, 2020 – Decided February 10, 2021

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-7583-17.

                   Allyson Wallace, appellant pro se.

                   Golden, Rothschild, Spagnola, Lundell, Boylan,
                   Garubo & Bell, PC, attorneys for respondent (Philip A.
                   Garubo, Jr., on the brief).

PER CURIAM

          Plaintiff Allyson Wallace filed a complaint against defendant Starkist for

damages arising from her alleged injuries that were caused by her eating a
foreign substance in a can of defendant 's tuna fish. In response to a Rule 4:6-

2(e) motion by defendant, Judge Robert H. Gardner dismissed plaintiff's

complaint with prejudice because it was filed after the statute of limitations had

expired. On December 19, 2018, in response to numerous unsuccessful motions

to reinstate, Judge Sallyanne Floria entered a Rosenblum1 order that required

plaintiff's motions to be screened before filing. When plaintiff filed a motion to

reinstate that was supported by an alleged copy of her complaint bearing a timely

filed stamp, Judge Floria approved its filing and transferred it to Judge Gardner.

On February 15, 2019, Judge Gardner denied the motion because he concluded

that the copy of the complaint plaintiff had produced was an altered document.

      Plaintiff appeals from Judge Floria's Rosenblum order and Judge

Gardner's February 15, 2019 order. On appeal, she argues that Judge Gardner's

determination was not supported by the evidence on the motion, she was entitled

to relief from the order dismissing her complaint under Rule 4:50-1, and the

problems with the filing of her complaint were clerical errors that should have

been remedied under Rule 1:13-1. We find no merit to plaintiff's contentions.




1
  Rosenblum v. Borough of Closter,  333 N.J. Super. 385, 387 (App. Div. 2000)
(addressing when the court can screen a litigant's submissions before filing).
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We affirm substantially for the reasons stated by Judge Gardner in his February

15, 2019 oral decision.

      On September 6, 2015, plaintiff allegedly choked on a white, "egg-like"

object found within a can of Starkist tuna. 2 Following this incident, on October

27, 2015, plaintiff was "tested" at a hospital and diagnosed with a sore throat

and contact dermatitis, and prescribed medication.

      On August 30, 2017, plaintiff submitted her complaint for filing. On

September 5, 2017, plaintiff was granted a filing fee waiver under Rule 1:13-2.

On September 19, 2017, the court's clerk notified plaintiff that her complaint

was deficient due to plaintiff's failure to file a case information statement (CIS).

The notice also provided that if plaintiff returned the required documents within

ten days, her complaint would be filed as of the original filing date as permitted

by Rule 1:5-6(c). Despite that notice, according to the court clerk's records,

plaintiff did not refile her complaint until October 23, 2017.

      In lieu of an answer, defendant filed a Rule 4:6-2(e) motion on January

23, 2018, seeking to dismiss plaintiff's complaint with prejudice due to

plaintiff's failure to file her complaint before the statute of limitations , N.J.S.A.



2
   Plaintiff indicated that she sent the white, egg-like object to Starkist, who
identified the object as the eyeball of a tuna fish.
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2A:14-2, had run on September 6, 2017. During oral argument on defendant's

motion on March 2, 2018, plaintiff represented that she had documents that

established her timely filing of her complaint, but she did not produce them in

court. Judge Gardner afforded plaintiff time to supply him and defense counsel

with those documents and, when she failed to do so, granted defendant's motion

on March 16, 2018, and dismissed plaintiff's complaint with prejudice.

      Thereafter, plaintiff filed twelve motions to vacate the dismissal and

reinstate her complaint. 3 Judge Gardner denied each one because none of her

motions were supported by evidence that proved she filed her complaint within

the applicable statute of limitations. Defendant moved at one point for an order

imposing sanctions for plaintiff's repetitious filings, and on September 14, 2018,

Judge Gardner entered an order imposing a $500 sanction on plaintiff under Rule

1:4-5 and suggested that defendant seek the entry of a Rosenblum order if

plaintiff persisted in filing unsupported motions.

      On October 4, 2018, defendant filed a motion requesting that plaintiff be

held in contempt for failure to pay the $500, that plaintiff be compelled to pay

the $500, and that plaintiff be enjoined from future filings regarding the statute


3
  Plaintiff filed two motions "to vacate dismissal/reinstate the complaint" prior
to the actual dismissal of her complaint; one on January 29, 2018, and the other
on March 8, 2018.
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of limitations. On October 12, 2018, Judge Gardner granted the motion in part,

finding plaintiff in contempt and compelling her to pay the fine, but declining

to address plaintiff's ability to file motions because those requests "ha[d] to be

decided by the Assignment Judge."

      Defendant refiled the motion for that relief before Judge Floria, the

Assignment Judge. At oral argument on December 19, 2018, plaintiff again

responded that she had in her possession, but not in court, documents that

established her timely filing of the complaint. On the same day, Judge Floria

granted the motion in part and issued a Rosenblum order enjoining plaintiff from

filing any additional motions regarding the statute of limitations and requiring

that all of plaintiff's future filings in the matter be marked "received but not

filed" unless otherwise ordered by Judge Floria. The order also vacated the entry

of sanctions against plaintiff.

      On December 21, 2018, plaintiff for the first time produced a complaint

together with a CIS bearing a "filed" stamp dated September 26, 2017, with no

supporting motion. The "filed" stamp on the complaint appeared as follows:




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      The stamp on the bottom of the CIS appeared as follows:




      Relying on these documents, plaintiff filed a motion on January 14, 2019,

to vacate dismissal and reinstate her complaint on the basis that the documents


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demonstrated that she filed her complaint and CIS with Judge Gardner's

chambers on September 26, 2017. After reviewing plaintiff's submission, Judge

Floria approved the filing and assigned the matter to Judge Gardner.

      On February 15, 2019, Judge Gardner held oral argument on plaintiff's

motion. During the arguments, plaintiff provided the judge with copies of her

complaint and CIS, which she claimed demonstrated that they were timely filed

on September 26, 2017. In response to these documents, defendant's counsel

pointed out that plaintiff had been given nearly a year to provide the documents,

that the documents did "not appear in the court jacket," and did "not appear

authentic on their face."

      After reviewing the documents and considering the parties' arguments,

Judge Gardner denied plaintiff's motion. He found that the stamp indicating

plaintiff had filed her complaint and CIS on September 26, 2017 with his

chambers was "suspect" and that the "filed" stamp appeared to have been taken

from a different document and subsequently affixed to plaintiff's complaint. He

noted that the words "civil action" in block letters appeared behind the "filed"

stamp and found that those words are not part of the stamp, nor did those words

normally appear in the position on the complaint where the stamp was placed .

He further observed that the words "civil action" also appeared off-center,


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indicating that they were not part of the stamp, but rather had been taken from a

different document bearing Judge Gardner's stamp and placed on a copy of

plaintiff's complaint and CIS after the fact. Moreover, Judge Gardner noted that

the court clerk had no record of plaintiff's September 26 filing, and the stamp—

bearing his name and the word "filed"—could not have come from his chambers

because "individual [j]udges' [c]hambers are not authorized to receive and file

stamped filed copies of [the c]omplaint." This appeal followed.

      In her appellate brief, plaintiff contends that we should reverse the denial

of her last motion because her complaint was ultimately filed within the statute

of limitations, her failure to produce the document earlier was caused by

"excusable neglect" under Rule 4:50-1, and any issue with the date of the "filed"

stamp is a matter of clerical error under Rule 1:13-1. We disagree.

      Rule 4:50-1 allows a judge to vacate a final order or judgment under

certain circumstances.    Pertinent to plaintiff's appeal are subsections "(a)

mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered

evidence which would probably alter the judgment or order and which by due

diligence could not have been discovered in time . . . ; or (f) any other reason

justifying relief from the operation of the judgment or order." R. 4:50-1. Rule

1:13, in pertinent part, provides that "clerical mistakes in judgments [or]


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orders . . . arising from oversight and omission may at any time be corrected by

the court on its own initiative or on the motion of any party." R. 1:13-1.

      The record here does not support a finding that a clerical error occurred

that resulted in the late filing of plaintiff's complaint, or that there was any

reason under Rule 4:50-1 to vacate the dismissal order. Here, there was no

dispute that the statute of limitations barred plaintiff's complaint if it was filed

after September 6, 2017. Moreover, it was undisputed that plaintiff submitted

her original complaint before that deadline, which could not be filed because it

lacked a CIS, and that plaintiff received a notice from the clerk advising her that

if she resubmitted her complaint with the CIS within ten days, it would be filed

as of its original filing date.

      It was also undisputed that plaintiff filed numerous motions during 2018

to reinstate her complaint without ever producing a copy of a timely fil ed

complaint and CIS until she filed her last motion in January 2019. Finally, there

was no dispute that the documents she submitted appeared in the form illustrated

above, which Judge Gardner found was not a legitimate copy of a filed pleading

based on the apparent alteration to the proffered document and it bearing his

chamber's "filed" stamp, which was produced for the first time more than a year

after the dismissal despite plaintiff having filed numerous motions to reinstate


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supported by claims without any proof that she had documents to support her

contentions.

      In light of our understanding of the record before us, and the applicable

principles of law, we conclude plaintiff's contentions on appeal are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E),

as we find Judge Gardner did not abuse his discretion, see U.S. Bank Nat'l Ass'n

v. Guillaume,  209 N.J. 449, 467 (2012), by refusing to vacate the earlier order

dismissing plaintiff's complaint. Finally, because plaintiff did not brief any

arguments challenging Judge Floria's December 19, 2018 Rosenblum order, any

challenges to that order have been waived. See Sklodowsky v. Lushis,  417 N.J.

Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed

waived.").

      Affirmed.




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