NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1475-23
A & M TRUCKING & WAREHOUSING,
Plaintiff-Appellant,
v.
MTC KENWORTH, INC.,
Defendant-Respondent,
and
PACCAR FINANCIAL,
Defendant. ____________________________
Submitted September 8, 2025 – Decided September 16, 2025
Before Judges Sabatino and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1160-19.
Fusco & Macaluso, PC, attorneys for appellant (Amie E. DiCola, on the brief).
Michael J. Sprague, attorney for respondent. PER CURIAM
Plaintiff A & M Trucking & Warehousing appeals from a trial court order
denying its motion to reinstate its complaint against defendant MTC Kenworth,
Inc., previously dismissed without prejudice for lack of prosecution pursuant to
Rule 1:13-7. After our review of the record and application of the relevant legal
principles, we affirm.
I.
Plaintiff filed a complaint against defendant and co-defendant Paccar
Financial ("Paccar") in February 2019. At issue was the condition of a used
tractor purchased from defendant on or around July 2014. At the time, defendant
was operating a truck dealership. The defendant company closed in 2015 after
the death of its owner.
Plaintiff alleged the tractor required multiple repairs over the next three
years. In December 2017, plaintiff housed the tractor at a dealership in
Ridgefield Park. Thereafter, in that same month, the tractor was moved to a
non-party dealership in Dayton. After defendant and Paccar were served with
plaintiff's complaint, on March 25, 2019, Paccar filed a notice to transfer the
case to federal court based on diversity jurisdiction.
A-1475-23 2 Paccar transferred the case to federal court before defendant filed a
responsive pleading in the Law Division matter. Defendant attempted to appear
in the Law Division matter by submitting an answer on April 22, 2019. The
answer was not filed by the court because the case had been transferred to federal
court. Thereafter, plaintiff agreed to voluntarily dismiss its claims against
Paccar. On May 20, 2019, a Stipulation of Dismissal was filed in federal court,
which was executed and filed on June 14, 2019. Upon Paccar's dismissal, the
federal case was closed. On June 20, 2019, plaintiff's counsel sent a letter to the
federal court requesting the case be returned to the Law Division.
The next event of relevance here occurred in March 2020 when plaintiff
requested defendant sign a consent order to transfer the case from the federal
court to the Law Division. Defendant agreed and the parties submitted a consent
order, which was entered in the federal court docket on March 30, 2020,
uploaded to its case history, and forwarded to the Law Division clerk. The
consent order was e-filed and uploaded to the Law Division's case history on
April 7, 2020.
On August 14, 2020, the trial court served plaintiff with a sixty-day
warning notice that its complaint would be dismissed due to lack of prosecution
pursuant to Rule 1:13-7(a) because plaintiff had not requested entry of default
A-1475-23 3 after the federal court transferred the matter to the Law Division. When plaintiff
took no action in response to the dismissal warning, the complaint was dismissed
without prejudice on October 17, 2020.
The record before us indicates that sometime in 2021 plaintiff's counsel
requested defendant to consent to restore the complaint but defendant denied
this request. On September 8, 2023, the dealership, which had possessed the
tractor for six years, advised plaintiff of its intent to sell or dispose of the
vehicle. Thereafter, plaintiff filed its motion seeking restoration of the
complaint in December 2023.
The trial court heard oral argument on January 5, 2024, and denied
plaintiff's motion. The court determined that since the case was dismissed for
lack of prosecution pursuant to Rule 1:13-7, it is required to "apply the good
cause standard" concerning reinstatement. The court found "good cause requires
that there be some demonstration by the movant to explain [] the delay. . . ."
The court determined there was no dispute the vehicle was "purchased in 2014,
and the last time defendant did any work . . . . was in 2014." The court
additionally found defendant's "business closed in January of 2015, and it's been
out of business, and the former owner died."
A-1475-23 4 The court determined the complaint was filed in February 2019 and
plaintiff's counsel sent a spoliation letter to the dealership which possessed the
vehicle in May of 2019. The court found "plaintiff abandoned the vehicle
sometime in 2017 or 2018." The court also determined the "federal case was
dismissed on June 19, 2019" and "nothing else happened until March of 2020,
when plaintiff sought a consent order to remand to the state court . . . and the
case was remanded to state court."
The court noted that "on August 15, 2020, the [c]ourt issued a lack of
prosecution warning and then dismissed" the matter on October 7, 2020. The
court found not until "more than three years later, a motion to reinstate [was
filed]." The court also determined there was no evidence [i]n the record of any
diligent pursuit of the claim by plaintiff or that any "certification was submitted
by counsel explaining this delay." The court stated it understood
there was some confusion and difficulty perhaps in reaching court personnel at the early stages of the pandemic. But counsel knew and presumably the client knew, . . . in 2020 that they had signed a consent order to remand, and by 2021 learned that the case had . . . been remanded successfully but [the case] had been dismissed for lack of prosecution in October of 2020, and no action was taken with the [c]ourt to try to revive the case.
A-1475-23 5 The court found it had provided email notices of the "first lack of
prosecution warning" as well as the dismissal without prejudice order to the
email address of counsel of record for the plaintiff. The court also thoughtfully
recognized and took into consideration the health difficulties of plaintiff's trial
counsel1 which were disclosed in its motion, but found plaintiff's current counsel
"was the attorney responsible for [the current motion] in the interim during these
various times [and counsel] was the one who solicited and received the order of
remand." The court determined "as of 2020, regardless of the other people who
were maybe not available at the firm to work on it, [counsel] had a responsibility
to the case, and the firm . . . had a responsibility to the case and to the client."
The court further determined "[defendant's mechanics who worked on the
tractor had] all moved on, . . . the owner's dead, and everyone else is now five
more years out of contact, is a prejudice" because those witnesses are "necessary
for the [defendant to present a] defense. And the [d]efendant is the one who will
be prejudiced by not having access to witnesses who can respond to [p]laintiff's
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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-1475-23
A & M TRUCKING & WAREHOUSING,
Plaintiff-Appellant,
v.
MTC KENWORTH, INC.,
Defendant-Respondent,
and
PACCAR FINANCIAL,
Defendant. ____________________________
Submitted September 8, 2025 – Decided September 16, 2025
Before Judges Sabatino and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1160-19.
Fusco & Macaluso, PC, attorneys for appellant (Amie E. DiCola, on the brief).
Michael J. Sprague, attorney for respondent. PER CURIAM
Plaintiff A & M Trucking & Warehousing appeals from a trial court order
denying its motion to reinstate its complaint against defendant MTC Kenworth,
Inc., previously dismissed without prejudice for lack of prosecution pursuant to
Rule 1:13-7. After our review of the record and application of the relevant legal
principles, we affirm.
I.
Plaintiff filed a complaint against defendant and co-defendant Paccar
Financial ("Paccar") in February 2019. At issue was the condition of a used
tractor purchased from defendant on or around July 2014. At the time, defendant
was operating a truck dealership. The defendant company closed in 2015 after
the death of its owner.
Plaintiff alleged the tractor required multiple repairs over the next three
years. In December 2017, plaintiff housed the tractor at a dealership in
Ridgefield Park. Thereafter, in that same month, the tractor was moved to a
non-party dealership in Dayton. After defendant and Paccar were served with
plaintiff's complaint, on March 25, 2019, Paccar filed a notice to transfer the
case to federal court based on diversity jurisdiction.
A-1475-23 2 Paccar transferred the case to federal court before defendant filed a
responsive pleading in the Law Division matter. Defendant attempted to appear
in the Law Division matter by submitting an answer on April 22, 2019. The
answer was not filed by the court because the case had been transferred to federal
court. Thereafter, plaintiff agreed to voluntarily dismiss its claims against
Paccar. On May 20, 2019, a Stipulation of Dismissal was filed in federal court,
which was executed and filed on June 14, 2019. Upon Paccar's dismissal, the
federal case was closed. On June 20, 2019, plaintiff's counsel sent a letter to the
federal court requesting the case be returned to the Law Division.
The next event of relevance here occurred in March 2020 when plaintiff
requested defendant sign a consent order to transfer the case from the federal
court to the Law Division. Defendant agreed and the parties submitted a consent
order, which was entered in the federal court docket on March 30, 2020,
uploaded to its case history, and forwarded to the Law Division clerk. The
consent order was e-filed and uploaded to the Law Division's case history on
April 7, 2020.
On August 14, 2020, the trial court served plaintiff with a sixty-day
warning notice that its complaint would be dismissed due to lack of prosecution
pursuant to Rule 1:13-7(a) because plaintiff had not requested entry of default
A-1475-23 3 after the federal court transferred the matter to the Law Division. When plaintiff
took no action in response to the dismissal warning, the complaint was dismissed
without prejudice on October 17, 2020.
The record before us indicates that sometime in 2021 plaintiff's counsel
requested defendant to consent to restore the complaint but defendant denied
this request. On September 8, 2023, the dealership, which had possessed the
tractor for six years, advised plaintiff of its intent to sell or dispose of the
vehicle. Thereafter, plaintiff filed its motion seeking restoration of the
complaint in December 2023.
The trial court heard oral argument on January 5, 2024, and denied
plaintiff's motion. The court determined that since the case was dismissed for
lack of prosecution pursuant to Rule 1:13-7, it is required to "apply the good
cause standard" concerning reinstatement. The court found "good cause requires
that there be some demonstration by the movant to explain [] the delay. . . ."
The court determined there was no dispute the vehicle was "purchased in 2014,
and the last time defendant did any work . . . . was in 2014." The court
additionally found defendant's "business closed in January of 2015, and it's been
out of business, and the former owner died."
A-1475-23 4 The court determined the complaint was filed in February 2019 and
plaintiff's counsel sent a spoliation letter to the dealership which possessed the
vehicle in May of 2019. The court found "plaintiff abandoned the vehicle
sometime in 2017 or 2018." The court also determined the "federal case was
dismissed on June 19, 2019" and "nothing else happened until March of 2020,
when plaintiff sought a consent order to remand to the state court . . . and the
case was remanded to state court."
The court noted that "on August 15, 2020, the [c]ourt issued a lack of
prosecution warning and then dismissed" the matter on October 7, 2020. The
court found not until "more than three years later, a motion to reinstate [was
filed]." The court also determined there was no evidence [i]n the record of any
diligent pursuit of the claim by plaintiff or that any "certification was submitted
by counsel explaining this delay." The court stated it understood
there was some confusion and difficulty perhaps in reaching court personnel at the early stages of the pandemic. But counsel knew and presumably the client knew, . . . in 2020 that they had signed a consent order to remand, and by 2021 learned that the case had . . . been remanded successfully but [the case] had been dismissed for lack of prosecution in October of 2020, and no action was taken with the [c]ourt to try to revive the case.
A-1475-23 5 The court found it had provided email notices of the "first lack of
prosecution warning" as well as the dismissal without prejudice order to the
email address of counsel of record for the plaintiff. The court also thoughtfully
recognized and took into consideration the health difficulties of plaintiff's trial
counsel1 which were disclosed in its motion, but found plaintiff's current counsel
"was the attorney responsible for [the current motion] in the interim during these
various times [and counsel] was the one who solicited and received the order of
remand." The court determined "as of 2020, regardless of the other people who
were maybe not available at the firm to work on it, [counsel] had a responsibility
to the case, and the firm . . . had a responsibility to the case and to the client."
The court further determined "[defendant's mechanics who worked on the
tractor had] all moved on, . . . the owner's dead, and everyone else is now five
more years out of contact, is a prejudice" because those witnesses are "necessary
for the [defendant to present a] defense. And the [d]efendant is the one who will
be prejudiced by not having access to witnesses who can respond to [p]laintiff's
allegations." The court concluded
the warranty's expired and the last contact [d]efendants had with the truck was in 2014, I'm not sure what claims might be viable, but I think there were allegations of
1 Plaintiff's trial counsel was ill for an extended period and has since passed away. A-1475-23 6 misrepresentations and fraud. And maybe those were viable claims in 2018 and [20]19 when the case was filed, but the [c]ourt is not going to reinstate at this time after the lack of prosecution for this period of time and the increase in prejudice to the [d]efendant.
On appeal, plaintiff asserts the trial court abused its discretion by finding
no good cause existed to reinstate its complaint and that the prejudice suffered
by defendant outweighed plaintiff's right to fully and fairly litigate its claims on
its merits.
II.
In single defendant cases, Rule 1:13-7(a) provides for reinstatement of a
dismissed complaint upon the filing of a motion, which shall be granted on good
cause shown if the motion for reinstatement is filed within ninety days of the
order of dismissal. In applying Rule 1:13-7, "courts have been consistent in
following prior case law by engrafting an 'absence of prejudice to the defendant'
standard onto the 'good cause' standard." Pressler & Verniero, Current N.J.
Court Rules, cmt. 1.2 on R. 1:13-7 (2026).
"[A]bsent a finding of fault by the plaintiff and prejudice to the
defendant," motions to reinstate a complaint dismissed for lack of prosecution
should be viewed liberally. Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App.
Div. 2007). In considering the prejudice to a defendant in reviewing a motion
A-1475-23 7 to reinstate pursuant to Rule 1:13-7, "[t]he key determinate . . . is whether
'specific or demonstrable prejudice' was inflicted upon the defendant. . . . To
that end, '[t]he principal concern in determining prejudice is impairment of the
defendant's ability to present a defense on the merits.'" Stanley v. Great Gorge
Country Club, 353 N.J. Super. 475, 490 (Law Div. 2002) (fourth alteration in
original) (quoting State v. One 1986 Subaru, 120 N.J. 310, 315 (1990)). "[T]he
prejudice alleged must be concrete and not hypothetical." Ibid.; see also
Moschou v. DeRosa, 192 N.J. Super. 463, 467 (App. Div. 1984).
"We will not disturb a trial court's exercise of discretion absent an abuse
of such discretion." Moraes v. Wesler, 439 N.J. Super. 375, 378 (App. Div.
2015). An abuse of discretion "arises when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Ibid. quoting Flagg v. Essex Co. Prosecutor, 171 N.J. 561,
571 (2002). An abuse of discretion also arises when "the discretionary act was
not premised upon consideration of all relevant factors, was based upon
consideration of irrelevant or inappropriate factors, or amounts to a clear error
in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).
After our review of the record, we conclude the trial court did not abuse
its discretion in denying plaintiff's reinstatement motion. The court's finding
A-1475-23 8 that defendant was unduly prejudiced due to plaintiff's delay in moving to
reinstate its complaint is based on substantial, credible evidence in the record.
The case was removed from federal court to state court in April 2020 and
thereafter, was dismissed for lack of prosecution in October 2020. At the point
plaintiff moved to reinstate its complaint in December 2023, the matter had been
dismissed for over three years. Both the dismissal warning and dismissal order
were posted in the e-courts filing system and emailed to plaintiff's counsel of
record. The record also clearly establishes plaintiff's counsel was aware of the
dismissal order as early as 2021 when plaintiff's counsel requested defendant
consent to restore its complaint.
We concur with the trial court that there would be substantial prejudice to
defendant if the case were reinstated because defendant had ceased operations
approximately eight years earlier in 2015, its owner had passed away prior to its
closing, and the mechanics or employees with relevant knowledge surrounding
the underlying events and condition of the tractor would be extremely difficult
to locate after such an extended lapse of time. The court's conclusions that
plaintiff failed to show good cause due to plaintiff's unreasonable delay in
moving to reinstate its complaint, its lack of any substantiated efforts to
prosecute its claims and the substantial prejudice suffered by defendant caused
A-1475-23 9 by these delays that would impede defendant's opportunity to fairly defend
against plaintiff's claims were amply supported by the record.
In reaching this conclusion, we are respectfully mindful of the sad
circumstances of counsel's illness and passing, but nonetheless, are not
persuaded the trial court abused its discretion.
Affirmed.
A-1475-23 10