NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4770-18T3
JORGE E. CALVACHE and SHIRLEY M. CALVACHE,
Plaintiffs-Appellants,
v.
WERNER ENTERPRISES, INC.,
Defendant-Respondent,
and
FABIAN M. PEART,
Defendant. _________________________
Argued telephonically July 14, 2020 – Decided July 29, 2020
Before Judges Sabatino and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2579-16. Glenn Anthony Farrell argued the cause for appellants (Calcagno & Associates, attorneys; Glenn Anthony Farrell, on the briefs).
Jonathan C. Springer argued the cause for respondent (Salmon Ricchezza Singer & Turchi, LLP attorneys; Jeffrey A. Segal and Jonathan C. Springer, on the brief).
PER CURIAM
Plaintiffs Jorge E. Calvache and Shirley M. Calvache, husband and wife,
appeal two trial court orders denying their motion to reinstate their complaint in
this personal injury case after it was dismissed under Rule 1:13-7(a) for lack of
prosecution. Plaintiffs' reinstatement motion was filed almost five years after
the subject accident and over two years after the court dismissed their complaint.
Applying the deferential standard of review that governs trial court rulings on
reinstatement motions, we affirm.
According to their complaint, plaintiffs were involved in a motor vehicle
accident on July 16, 2014, when a commercial vehicle driven by defendant
Fabian M. Peart struck plaintiffs' vehicle while attempting a lane change.
Plaintiffs were both injured in the collision. They retained a law firm to
represent them in this personal injury case. On July 15, 2016, a day before the
two-year statute of limitations ran, plaintiffs' law firm filed this civil action in
A-4770-18T3 2 the Law Division in Passaic County against Peart and his then employer, Werner
Enterprises. The complaint also named fictitious defendants.
Because plaintiffs had not made service on either named defendant, the
court administratively dismissed the case in February 2016 for lack of
prosecution, pursuant to Rule 1:13-7(a). Fifteen months later in May 2018,
plaintiffs served Werner Enterprises with the summons and complaint.
Plaintiffs have never made service on Peart, apparently because they have not
located him.
Plaintiffs took no further action concerning the lawsuit until March 2019,
when their counsel moved to reinstate the complaint. According to the
supporting certifications, plaintiffs' designated trial attorney and his law firm
have been overwhelmed by numerous personal and business problems.
Although we need not elaborate on all of those difficulties here, they included
the death of counsel's brother, the serious illness of his father, the defection of
several attorneys from his law firm, and the office manager's unexpected leave
of absence. The certifications do not indicate whether the law firm explored the
possibility of referring the case to a different firm while its operations were
impaired.
A-4770-18T3 3 After considering plaintiffs' submission and opposition from Werner
Enterprises, the trial court denied the reinstatement motion. The motion judge
notated the following reasons in the denial order:
Application is denied. It is unfortunate that Plaintiffs’ counsel had issues with a family member’s health but that does not excuse this matter being ignored for over two years. The reasons set forth wh[ile] unfortunate do not constitute exceptional circumstances.
Plaintiffs moved for reconsideration. Again, defendant opposed the
belated reinstatement of the complaint. The trial court denied this motion as
well, noting the following comments on the denied order:
Application denied. This is one of many cases where cases were dismissed for failure to provide discovery, failure to prosecute and a myriad of other reasons. The court has reinstated some of the dismissed cases but it is a case by case analysis. I[n] this case applicant has failed to show that the court's decision was based on plainly incorrect reasoning or that the court failed to consider evidence.
We learned at oral argument on the appeal that this order's reference to
other "dismissed cases" refers to several other reinstatement motions that had
been filed by the law firm in other matters in this vicinage. As noted in the
reconsideration denial, the trial court performed a "case by case analysis" of the
circumstances in these matters and apparently reinstated some but not all of
them.
A-4770-18T3 4 The present appeal ensued.
The applicable legal standards are clear. Rule 1:13-7(a) specifies that in
"multi-defendant actions in which at least one defendant has been properly
served," an opposed motion to reinstate a case dismissed for lack of prosecution
"shall be granted only on a showing of exceptional circumstances." Ibid. A less
stringent standard of "good cause" applies only if the motion to reinstate is filed
within ninety days of the dismissal. Ibid. Here, plaintiffs' motion to reinstate
was filed more than two years after the case was dismissed, long after the ninety-
day "good cause" period ended.
We reject plaintiffs' argument that the trial court should have applied a
"good cause" standard here because only one defendant has appeared so far in
this case. The Rule explicitly adopts the more stringent standard for
reinstatement where, as here, the case is a multi-defendant action "in which at
least one defendant has been properly served." Ibid. It is inconsequential that
the unserved co-defendant, Peart, was apparently an employee or agent of
Werner Enterprises. It cannot be presumed that the interests of those co-
defendants are synonymous. They are two distinct named parties.
A-4770-18T3 5 Moreover, the Rule is explicit about how the court must analyze the matter
if at least one defendant has been served. Ibid. The "exceptional circumstances"
test applies.1
Although the death or health emergencies of counsel or counsel's family
members may qualify as exceptional circumstances, see O'Donnell v. Ahmed,
363 N.J. Super. 44, 51 (Law Div. 2003), such unfortunate events do not justify
indefinite relaxation of compliance with the court rules. In addition, recurring
problems with staff generally are insufficient to justify extensions of time.
Rodriguez v. Luciano, 277 N.J. Super. 109, 112-13 (App. Div. 1994).
The scope of review is critical to this appeal. We must review the denial
of a motion to reinstate a complaint dismissed for lack of prosecution for abuse
of discretion. Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App.
Div. 2011). 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.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
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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-4770-18T3
JORGE E. CALVACHE and SHIRLEY M. CALVACHE,
Plaintiffs-Appellants,
v.
WERNER ENTERPRISES, INC.,
Defendant-Respondent,
and
FABIAN M. PEART,
Defendant. _________________________
Argued telephonically July 14, 2020 – Decided July 29, 2020
Before Judges Sabatino and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2579-16. Glenn Anthony Farrell argued the cause for appellants (Calcagno & Associates, attorneys; Glenn Anthony Farrell, on the briefs).
Jonathan C. Springer argued the cause for respondent (Salmon Ricchezza Singer & Turchi, LLP attorneys; Jeffrey A. Segal and Jonathan C. Springer, on the brief).
PER CURIAM
Plaintiffs Jorge E. Calvache and Shirley M. Calvache, husband and wife,
appeal two trial court orders denying their motion to reinstate their complaint in
this personal injury case after it was dismissed under Rule 1:13-7(a) for lack of
prosecution. Plaintiffs' reinstatement motion was filed almost five years after
the subject accident and over two years after the court dismissed their complaint.
Applying the deferential standard of review that governs trial court rulings on
reinstatement motions, we affirm.
According to their complaint, plaintiffs were involved in a motor vehicle
accident on July 16, 2014, when a commercial vehicle driven by defendant
Fabian M. Peart struck plaintiffs' vehicle while attempting a lane change.
Plaintiffs were both injured in the collision. They retained a law firm to
represent them in this personal injury case. On July 15, 2016, a day before the
two-year statute of limitations ran, plaintiffs' law firm filed this civil action in
A-4770-18T3 2 the Law Division in Passaic County against Peart and his then employer, Werner
Enterprises. The complaint also named fictitious defendants.
Because plaintiffs had not made service on either named defendant, the
court administratively dismissed the case in February 2016 for lack of
prosecution, pursuant to Rule 1:13-7(a). Fifteen months later in May 2018,
plaintiffs served Werner Enterprises with the summons and complaint.
Plaintiffs have never made service on Peart, apparently because they have not
located him.
Plaintiffs took no further action concerning the lawsuit until March 2019,
when their counsel moved to reinstate the complaint. According to the
supporting certifications, plaintiffs' designated trial attorney and his law firm
have been overwhelmed by numerous personal and business problems.
Although we need not elaborate on all of those difficulties here, they included
the death of counsel's brother, the serious illness of his father, the defection of
several attorneys from his law firm, and the office manager's unexpected leave
of absence. The certifications do not indicate whether the law firm explored the
possibility of referring the case to a different firm while its operations were
impaired.
A-4770-18T3 3 After considering plaintiffs' submission and opposition from Werner
Enterprises, the trial court denied the reinstatement motion. The motion judge
notated the following reasons in the denial order:
Application is denied. It is unfortunate that Plaintiffs’ counsel had issues with a family member’s health but that does not excuse this matter being ignored for over two years. The reasons set forth wh[ile] unfortunate do not constitute exceptional circumstances.
Plaintiffs moved for reconsideration. Again, defendant opposed the
belated reinstatement of the complaint. The trial court denied this motion as
well, noting the following comments on the denied order:
Application denied. This is one of many cases where cases were dismissed for failure to provide discovery, failure to prosecute and a myriad of other reasons. The court has reinstated some of the dismissed cases but it is a case by case analysis. I[n] this case applicant has failed to show that the court's decision was based on plainly incorrect reasoning or that the court failed to consider evidence.
We learned at oral argument on the appeal that this order's reference to
other "dismissed cases" refers to several other reinstatement motions that had
been filed by the law firm in other matters in this vicinage. As noted in the
reconsideration denial, the trial court performed a "case by case analysis" of the
circumstances in these matters and apparently reinstated some but not all of
them.
A-4770-18T3 4 The present appeal ensued.
The applicable legal standards are clear. Rule 1:13-7(a) specifies that in
"multi-defendant actions in which at least one defendant has been properly
served," an opposed motion to reinstate a case dismissed for lack of prosecution
"shall be granted only on a showing of exceptional circumstances." Ibid. A less
stringent standard of "good cause" applies only if the motion to reinstate is filed
within ninety days of the dismissal. Ibid. Here, plaintiffs' motion to reinstate
was filed more than two years after the case was dismissed, long after the ninety-
day "good cause" period ended.
We reject plaintiffs' argument that the trial court should have applied a
"good cause" standard here because only one defendant has appeared so far in
this case. The Rule explicitly adopts the more stringent standard for
reinstatement where, as here, the case is a multi-defendant action "in which at
least one defendant has been properly served." Ibid. It is inconsequential that
the unserved co-defendant, Peart, was apparently an employee or agent of
Werner Enterprises. It cannot be presumed that the interests of those co-
defendants are synonymous. They are two distinct named parties.
A-4770-18T3 5 Moreover, the Rule is explicit about how the court must analyze the matter
if at least one defendant has been served. Ibid. The "exceptional circumstances"
test applies.1
Although the death or health emergencies of counsel or counsel's family
members may qualify as exceptional circumstances, see O'Donnell v. Ahmed,
363 N.J. Super. 44, 51 (Law Div. 2003), such unfortunate events do not justify
indefinite relaxation of compliance with the court rules. In addition, recurring
problems with staff generally are insufficient to justify extensions of time.
Rodriguez v. Luciano, 277 N.J. Super. 109, 112-13 (App. Div. 1994).
The scope of review is critical to this appeal. We must review the denial
of a motion to reinstate a complaint dismissed for lack of prosecution for abuse
of discretion. Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App.
Div. 2011). 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.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
1 During questioning counsel during oral argument on the appeal, plaintiffs' counsel represented to us that he would be willing to dismiss co-defendant Peart in order to take advantage of the more lenient "good cause" standard for reinstatement. We have pondered that representation and conclude it would be inappropriate to alter the applicable standard on appeal retroactively by revising the pleadings at this late juncture. A-4770-18T3 6 (2002) (quoting Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir.
1985)). Guided by that scope of review here, we are unpersuaded the motion
judge abused his discretion in denying the motion for reinstatement and the
ensuing motion for reconsideration.
The application of the "exceptional circumstances" test must be evaluated
on a case-by-case basis. Here, the motion judge had the special opportunity and
perspective to evaluate a range of dismissed cases that had been presented for
relief by the same law firm. In the judge's assessment, the present case was
comparatively too far down the spectrum of those cases to warrant
reinstatement. Nearly five years had passed since the subject accident, the
allegedly responsible driver had not been found and served, plaintiff's medical
status could possibly have changed, and defendant's access to medical records
of any previous treatment might not have been assured. The prospects for
prejudice in defending this stale case are not purely conjectural.
In sum, although the circumstances of plaintiffs' attorney and his law firm
were surely sympathetic, we are unpersuaded the motion judge's assessment was
so "wide of the mark" to compel appellate interference. Flagg, 171 N.J. at 568.
The decision fell within the zone of discretion. It is not our role to second-guess
that determination and impose what we might have done instead.
A-4770-18T3 7 Affirmed.
A-4770-18T3 8