NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2505-19
ESTATE OF LAURA CHRISTINE SEMPREVIVO by and through its administrator ad prosequendum, PATRICIA SEMPREVIVO, and PATRICIA SEMPREVIVO and RONALD APPROVED FOR PUBLICATION SEMPREVIVO in their May 11, 2021 own rights, APPELLATE DIVISION
Plaintiffs-Appellants,
v.
HASSAN LAHHAM,
Defendant,
and
LIVIU HOLCA,
Defendant-Respondent.
Argued April 14, 2021 – Decided May 11, 2021
Before Judges Fuentes, Whipple1 and Rose.
1 Judge Whipple did not participate in oral argument but joins the opinion with consent of the parties. R. 2:13-2(b). On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2343- 18.
Rook E. Ringer (Lento Law Group, PC) of the Florida bar, admitted pro hac vice, argued the cause for appellants (Lento Law Group, PC, attorneys; Joseph D. Lento, on the briefs).
Michael Heron argued the cause for respondent (Law Office of William L. Brennan, attorneys; William L. Brennan, of counsel and on the brief; Michael Heron, on the brief).
The opinion of the court was delivered by
ROSE, J.A.D.
This appeal implicates the proper application and limitations of Rule
1:13-7, long recognized as an administrative "docket-clearing rule that is
designed 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 v. Kwokleung Cheung, 422 N.J. Super. 377, 379 (App.
Div. 2011); see also Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div.
2007); Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div.
1989). Here, we address two issues: (1) whether the good cause or
exceptional circumstances standard applies for reinstatement of the complaint
in a multi-defendant case, where no defendants have appeared in the case and
participated in discovery; and (2) whether the rule empowers the trial court to
A-2505-19 2 dismiss a complaint with prejudice in response to a motion filed by the
nondelinquent party.
We conclude the trial court's misapplication of the exceptional
circumstances standard under Rule 1:13-7 prevented adjudication of plaintiffs'
claims on the merits. Thus, the trial court mistakenly exercised its discretion
by denying plaintiffs' motion to reinstate their complaint. We further hold that
Rule 1:13-7 neither empowers a trial court to dismiss a cause of action with
prejudice nor authorizes a party in a case to affirmatively seek such a drastic
sanction as a form of relief. Accordingly, we reverse and remand the January
10, 2020 Law Division order so the matter can be decided on the merits.
The genesis of this appeal is a medical negligence action filed on the eve
of the statute of limitations deadline. Because this action was dismissed before
either defendant answered the complaint or the parties engaged in the process
of discovery, the underlying facts are not well developed. The procedural
history is somewhat more protracted. We summarize the facts asserted in the
complaint and the procedural history from the record before the trial court. 2
2 We decline defendant Liviu Holca's invitation to take judicial notice of facts set forth in his responding brief that are gleaned from an action filed by plaintiffs in federal court against other entities arising from the same incident. See N.J.R.E. 201(b)(4) (permitting judicial notice of "records" of a "federal court sitting for this state"). Holca did not append the pleadings from that action, referring us instead to the District of New Jersey's website. See
A-2505-19 3 I.
Laura Christine Semprevivo committed suicide on September 16, 2016.
Some two years later, on September 17, 2018, her estate and Patricia
Semprevivo and Ronald Semprevivo, in their own rights (collectively,
plaintiffs), filed a medical negligence action against defendant medical
providers, Hassan Lahham and Liviu Holca. Plaintiffs alleged defendants
prescribed opioids while decedent was their patient and thereby "directly
caused" her death.
When no further court action was "timely taken" under Rule 1:13-7(b),
the trial court issued a written dismissal warning notice. Dated January 25,
2019, the notice advised plaintiffs their complaint would be dismissed within
sixty days, on March 26, 2019, for lack of prosecution under Rule 1:13-7, if
plaintiffs failed to comply with the rule. Notably, subsection (b) of Rule 1:13-
7 recognizes four "events [that] constitute required proceedings that must be
Biunno, Weissbard, and Zegas, Current N.J. Rules of Evidence, cmt. 13 on N.J.R.E. 201 (2021) (recognizing "[a] party requesting a [court] to judicially notice matter allegedly within N.J.R.E. 201 must provide the [court] with sufficient information for the [court] to be able to determine that the matter actually does fall within the categories set forth in the Rule and that the matter is in fact noticeable"). In any event, the record does not reflect that Holca requested the trial court to take judicial notice of the federal action or the facts alleged in that matter. Information that was not presented to the trial court for consideration is inappropriate for consideration on appeal. Zaman v. Felton, 219 N.J. 199, 226-27 (2014).
A-2505-19 4 timely taken to avoid the issuance by the court of a written notice of dismissal
as set forth in subsection (a)." Relevant here, those events include "(1) proof
of service or acknowledgment of service filed with the court; or (2) filing of
answer . . . ."
On March 29, 2019, plaintiffs' counsel apparently filed proof of service
as to both defendants, but the court issued a deficiency notice, stating: "This is
not good service." 3 The following day, the court on its own initiative issued a
notice indicating plaintiffs' complaint was dismissed without prejudice for lack
of prosecution under Rule 1:13-7.
On July 24, 2019, plaintiffs filed proof of service as to Holca, indicating
the summons and complaint were personally served at a specific address in
Princeton by delivering those documents to "Ms. Holca," identified as
defendant Holca's sister.
On the same date, plaintiffs filed proof of service on Lahham, stating
certified and regular mail was sent to Lahham at a specific post office box in
3 In their appendix on appeal, plaintiffs only included the non-conforming proof of service for Holca. In addition, both parties apparently quoted docket entries from the civil case jacket. Although the parties have not included a screen shot or other reproduction of those entries, we have considered their content, to the extent it is not contradicted by documents contained in the record. We take this opportunity to remind the bar that our review is confined to the parties' submissions; access to the civil case jacket is not readily available to this court.
A-2505-19 5 New York City on February 5, 2019. Certified mail was returned unclaimed
on March 13, 2019; regular mail was not returned. Plaintiffs also filed a
motion to reinstate the complaint under Rule 1:13-7(a).
According to plaintiffs, on July 25, 2019, the court apparently "issued an
entry upon the docket" that stated: "When serving a defendant outside of New
Jersey (by personal service or by certified/regular mail), an [a]ffidavit of
[d]iligent [i]nquiry is required. See R[.] 4:4-4(b)(1)."4
In the statement of facts and procedural history set forth in his
responding brief on appeal, Holca cites to the "Civil Case Jacket, Trans. ID
LCV20191290904, 7/25/2019," stating the trial court issued the deficiency
notice "because Dr. Holca was out of state." Holca has not, however, provided
a copy of that docket entry.
On July 29, 2019, plaintiffs filed a certification of due diligence as to
Lahham, who was served via mail at the New York City post office address.
In his responding brief on appeal, Holca states plaintiffs filed an affidavit of
4 Rule 4:4-4(b)(1)(C) prescribes the process for substituted service on an out- of-state defendant. Pursuant to subsection (c) of the rule, "such service shall be effective for obtaining in personam jurisdiction only if the defendant answers the complaint or otherwise appears in response thereto, and provided further that default shall not be entered against a defendant who fails to answer or appear in response thereto." Lahham has not answered plaintiffs' complaint or otherwise entered an appearance in the trial court. He is not a party to this appeal.
A-2505-19 6 diligent inquiry for Lahham, noting plaintiffs "did not correct the service
issues with respect to Dr. Holca." However, there is no evidence in the record
that Holca challenged personal service of "his sister" at the Princeton address
before the trial court.
On August 6, 2019, plaintiffs' present counsel filed a notice of
appearance, but plaintiffs' initial counsel remained involved in the matter. The
following day, Holca's attorney filed a notice of appearance and thereafter
opposed plaintiffs' reinstatement motion.
Following argument on August 19, 2019, the trial court rendered a
decision from the bench, denying plaintiffs' motion to reinstate. The court
briefly summarized the requirements of Rule 1:13-7. Unpersuaded by
plaintiffs' argument that a "clerical error" caused "an improper proof of
service" to be "uploaded to the docket on March 29, 2019," the court found
plaintiffs neither demonstrated good cause nor exceptional circumstances. The
court entered an accompanying order denying plaintiffs' motion without
prejudice.
On October 31, 2019, Holca moved to dismiss plaintiffs' complaint with
prejudice. According to counsel's certification in support of the motion,
because "more than sixty days ha[d] elapsed, [Holca] is moving to dismiss this
matter with prejudice." During oral argument before the trial court, Holca's
A-2505-19 7 counsel acknowledged "looking at the rules, there was really nothing [he] saw,
which would indicate how to go [sic] for a dismissal with prejudice." Counsel
said he therefore "waited the sixty days" as required for with-prejudice
dismissals for "discovery" failures. See R. 4:23-2(b). Holca's lawyer further
argued, because the statute of limitations had expired, the dismissal without
prejudice was "equivalent . . . to a dismissal with prejudice." Nonetheless,
counsel filed the present motion "in an abundance of caution." Finally,
counsel argued plaintiffs failed to file their second reinstatement motion until
they were served with Holca's motion to dismiss their complaint with
Plaintiffs opposed the motion and again moved to reinstate their
complaint. During oral argument, plaintiffs' counsel cited staffing issues to
explain the issues in service. In support of their motion, plaintiffs filed the
certification of their initial attorney who elaborated:
[1]. In or about March 2019 my office suffered a significant staff loss. Four paralegals employed with the [firm] left their positions.
[2]. These individuals were responsible for the calendaring and service of this matter.
[3]. As a result of not having the staff to handle my current case load the [c]ourt[']s deficiency notice slipped through the cracks.
A-2505-19 8 During colloquy with counsel, the trial court indicated it had "re-listened
to oral argument" from plaintiffs' initial reinstatement motion and the present
hearing was "the first time" that plaintiffs raised "any staffing issue in
counsel's office." 5 Citing our decision in Baskett, the trial court recognized
that "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." 422
N.J. Super. at 381 (quoting Ghandi, 390 N.J. Super. at 197). The court then
carried the motion to afford Holca's counsel the opportunity to address whether
his client would be prejudiced by reinstatement and any other issues raised
during the hearing.
During argument on January 10, 2020, the trial court considered the
supplemental arguments of counsel. The court summarized Holca's prejudice
argument as "lapse of time, memory with regard to any events that may have
allegedly transpired." After citing the relevant portions of Rule 1:13-7, the
court again determined plaintiffs failed to "present any exceptional
circumstances or even good cause as to why the lack of prosecution should be
vacated." The court made no finding as to prejudice to defendant, concluding
plaintiffs "fail[ed] to meet the exceptional circumstances standard required
5 According to the transcript of the August 19, 2019 hearing, plaintiffs' counsel made a single, general reference to "some staff issues."
A-2505-19 9 under the court rule." The court dismissed plaintiffs' complaint with prejudice
on Holca's motion, but cited no court rule to support his decision. The same
day, the court entered a memorializing order. This appeal followed.
On appeal, plaintiffs reprise their argument that Rule 1:13-7 provides
"no procedural basis" for dismissals with prejudice. Plaintiffs contend the trial
court erred by applying the heightened Rule 1:13-7(a) exceptional
circumstances standard for multi-defendant cases in deciding their
reinstatement motion. Plaintiffs argue that under the circumstances presented,
the court should have decided their motion under the rule's good cause
standard and that good cause existed for reinstatement of the complaint. We
agree.
II.
We review the denial of a motion to reinstate a complaint dismissed for
lack of prosecution for abuse of discretion. Baskett, 422 N.J. Super. at 382. A
decision constitutes an abuse of discretion when it was "made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561,
571 (2002) (internal quotation marks omitted). We review legal issues de
novo. Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App. Div.
2007). Accordingly, "[a] trial court's interpretation of the law and the legal
A-2505-19 10 consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995) (citations omitted).
We begin our analysis by reviewing the text of Rule 1:13-7(a), which
begins with the bases for an administrative dismissal of a complaint for lack of
prosecution and provides, in pertinent part:
[W]henever an action has been pending for four months . . . , without a required proceeding having been taken therein . . . , the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice . . . unless, within said period, action specified in subsection (c) is taken. If no such action is taken, the court shall enter an order of dismissal without prejudice as to any named defendant and shall furnish the plaintiff with a copy thereof.
[(Emphasis added).]
Subsection (a) then provides the standards and procedures for
reinstatement, permitting a plaintiff whose complaint has been dismissed to
file a motion to reinstate the complaint. A court ruling on such a motion must
determine whether the plaintiff has established good cause on one hand, or
exceptional circumstances on the other, depending on the timing of the motion
and the number of parties in the case:
After dismissal, . . . [i]f the defendant has been properly served but declines to execute a consent A-2505-19 11 order, plaintiff shall move on good cause shown for vacation of the dismissal. In multi-defendant actions in which at least one defendant has been properly served, the consent order shall be submitted within 60 days of the order of dismissal, and if not so submitted, a motion for reinstatement shall be required. The motion shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted only on a showing of exceptional circumstances.
[Ibid.]
We turn to the purpose underlying the exceptional circumstances
standard applied by the judge in denying plaintiffs' reinstatement motion. In
doing so, we recognize there is no dispute that plaintiffs filed their motion
more than ninety days after entry of the March 30, 2019 dismissal order.
The exceptional circumstances standard "was intended to avoid delay
where a case has proceeded against one or more defendants, and the plaintiff
then seeks to reinstate the complaint against a previously-dismissed additional
defendant." Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 609
(App. Div. 2014); see also Pressler & Verniero, Current N.J. Court Rules, cmt.
1.2 on R. 1:13-7(a) (2021). The exceptional circumstances standard therefore
applies in a multi-defendant case that has proceeded against a properly served
defendant prior to the filing of a motion to reinstate a complaint that was
administratively dismissed against another defendant.
A-2505-19 12 The rationale underlying the requirement that a plaintiff demonstrate
exceptional circumstances in multi-defendant cases stems from a management
problem that arises in such cases. Pressler & Verniero, cmt. 1.2 on R. 1:13-
7(a). In multi-defendant cases where the complaint has been dismissed as to
only one defendant,
the case likely will have proceeded and discovery undertaken at least with respect to the action(s) against the remaining defendant or defendants. Thus vacation of the dismissal has the capacity of substantially delaying all further proceedings. To permit appropriate case management, the rule requires the consent order to be submitted within 60 days after the dismissal or, in the alternative, on motion for good cause shown within 90 days of the order of dismissal or on a showing of exceptional circumstances thereafter.
When interpreting Rule 1:13-7, a trial court should consider the
following governing principles:
The rules in Part I through Part VIII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice.
[R. 1:1-2(a).]
A-2505-19 13 Moreover, the general concept of relaxing a rule when adherence to it
would result in an injustice takes on added significance when a rule involves
case management and a party is facing the ultimate sanction of dismissal with
prejudice. As we have observed:
We appreciate the desirability of the prompt disposal of cases. Courts should not forget, however, that they merely provide a disinterested forum for the just resolution of disputes. Ordinarily, the swift movement of cases serves the parties' interests, but the shepherding function we serve is abused by unnecessarily closing the courtroom doors to a litigant whose only sin is to retain a lawyer who delays in filing an answer during settlement negotiations. Eagerness to move cases must defer to our paramount duty to administer justice in the individual case.
[Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 406 (App. Div. 1986); see also Ghandi, 390 N.J. Super. at 198.]
As we reiterated in Ghandi: "Because . . . 'any rule may be relaxed or
dispensed with by the court in which the action is pending if adherence to it
would result in an injustice,' R. 1:1-2, 'courts should be reluctant to penalize a
blameless client for the mistakes of the attorney.'" 390 N.J. Super. at 198
(quoting Familia v. Univ. Hosp. of Univ. of Med. & Dentistry of N.J., 350 N.J.
Super. 563, 568 (App. Div. 2002)). We further noted the "general
disinclination to invoke the ultimate sanction of dismissal where the statute of
limitations has run." Ibid. (quoting Mason, 233 N.J. Super. at 268-69).
A-2505-19 14 With those principles in mind, we turn to the facts in the present matter.
The trial court applied the "exceptional circumstances" standard in Rule 1:13-7
at a juncture in the case when application of that standard did not serve the
purpose of the rule. The reinstatement motion was filed after plaintiffs filed
proof of service as to both defendants, neither of whom had filed an answer
and, clearly, discovery had not ensued. As the trial court recognized at the
first hearing on August 19, 2019: "There [wa]s no discovery end date,
arbitration or trial date." We therefore conclude the judge's application of the
heightened exceptional circumstances standard here is not supported by the
plain language of Rule 1:13-7(a), and is inconsistent with that standard's
purpose. Indeed, the management problem the rule was intended to address –
delay of all further proceedings against defendants that have participated in the
case and taken discovery – did not exist.
Our conclusion that the motion judge erred by applying the exceptional
circumstances standard under the circumstances presented does not end the
inquiry. We consider whether the record supports a determination that
plaintiffs demonstrated good cause for the reinstatement of the complaint.
We have recognized the term, "good cause," evades a precise definition.
Ghandi, 390 N.J. Super. at 196. Instead, courts applying the good cause
standard must exercise "sound discretion in light of the facts and
A-2505-19 15 circumstances of the particular case considered in the context of the purposes
of the Court Rule being applied." Ibid. (quoting Delaware Valley Wholesale
Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002)). In
Ghandi, we addressed the good cause standard under Rule 1:13-7(a), where the
plaintiff failed to request the entry of default. 390 N.J. Super. at 195. We
stated that because administrative dismissals 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.'" Id. at 196 (quoting Rivera v. Atl. Coast Rehab.
and Health Ctr., 321 N.J. Super. 340, 349 (App. Div. 1999)).
In Baskett, we applied the Ghandi good cause standard to a trial court's
denial of the plaintiffs' motion to reinstate a complaint, where we were
disturbed that the dismissal resulted from plaintiffs' initial lawyer's inattention.
Baskett, 422 N.J. Super. at 384-85. We also noted that the defendants failed to
present any evidence demonstrating they suffered prejudice from the plaintiffs'
delay in seeking reinstatement. Id. at 384. We reversed the trial court's order,
finding that under the "indulgence mandated by Ghandi," and because the
plaintiffs were "essentially blameless, the courthouse doors should not be
locked and sealed to prevent their claims from being resolved in the judicial
forum." Id. at 385.
A-2505-19 16 Here, application of the principles we espoused in Ghandi and Baskett
require reversal of the court's order denying plaintiffs' reinstatement motion.
The record is devoid of any blame directly attributable to plaintiffs. Indeed,
the certification of plaintiffs' initial counsel expressly specified that the bla me
lay with the firm's staffing issues.
Just as importantly, Holca did not present the trial court – or this court –
with any evidence demonstrating he would be prejudiced if plaintiffs' motion
was granted, other than a general and speculative "lapse of . . . memory." See
Baskett, 422 N.J. Super. at 385 (finding good cause for reinstatement of a
complaint in part because the defendant did not present a "scintilla of
evidence" supporting his claim of prejudice).
Having considered the record, we are convinced the good cause standard
applied, and was satisfied. We therefore conclude the denial of plaintiffs'
motions constituted a mistaken exercise of discretion.
We turn next to plaintiffs' argument that Rule 1:13-7 did not provide a
procedural mechanism for dismissal of their complaint with prejudice. As
quoted above, the text of the rule is clear and unambiguous. "Dismissals under
the rule are 'without prejudice.'" Ghandi, 390 N.J. Super. at 196 (citing R.
1:13-7(a)). Indeed, "[p]aragraph (a) of the rule expressly provides that a
dismissal pursuant thereto is without prejudice." Pressler & Verniero, Current
A-2505-19 17 N.J. Court Rules, cmt. 1.1 on R. 1:13-7 (2021). As Holca candidly
acknowledged before the motion judge, no other rule authorizes a with-
prejudice dismissal where, as here, plaintiffs' pleading was administratively
dismissed by the court. Indeed, no case law supports the judge's decision.
We recognize plaintiffs filed their second reinstatement motion only
after Holca filed his motion to dismiss with prejudice and, as such, their
complaint would have remained dismissed had he not so moved. But the judge
denied plaintiffs' initial reinstatement motion "without prejudice" and
ultimately erroneously decided the motion under the exceptional circumstances
standard. Accordingly, we are not persuaded by Holca's argument that the
timing of the parties' countervailing motions precluded reinstatement of
plaintiffs' complaint.
Finally, we address Holca's decision to file a motion seeking the
dismissal of plaintiffs' case with prejudice as a form of affirmative relief
ostensibly available under Rule 1:13-7. A plain reading of the text of Rule
1:13-7 reveals no authority for this form of motion practice. Holca's reliance
on the procedural mechanism provided under Rule 4:23-5 is facially irrelevant
to the issues involved here. We thus make clear that Rule 1:13-7 does not
authorize this type of motion practice.
A-2505-19 18 The denial of plaintiffs' reinstatement motion constituted a mistaken
exercise of discretion and the judge erred as a matter of law by dismissing the
complaint with prejudice. Accordingly, we reverse and remand the matter so
Holca may file an answer or otherwise plead to the complaint, the parties may
commence discovery, and the action may be resolved on the merits.
Reversed and remanded. We do not retain jurisdiction.
A-2505-19 19