NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5346-16T1
JUAN PASTRANA,
Plaintiff-Appellant,
v.
JOSEPH CORONATO, GLENN MILLER, and OCEAN COUNTY, a New Jersey municipal corporation,
Defendants-Respondents. _______________________________
Submitted April 23, 2018 – Decided July 18, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 1305-15.
George J. Cotz, attorney for appellant.
Berry, Sahradnik, Kotzas & Benson, PC, attorneys for respondent (Mary Jane Lidaka, on the brief).
PER CURIAM
Plaintiff Juan Pastrana appeals from the May 28, 2017 order
denying his motion to reinstate his complaint, which had been
administratively dismissed pursuant to Rule 1:13-7 over a year. He also appeals from the July 10, 2017 order denying his motion
for reconsideration of the May 28, 2017 order. Although
plaintiff offers no explanation for his patently unreasonable
delay in moving to reinstate his complaint, we vacate both
orders and remand for reinstatement, as the R. 1:13-7
administrative order was obviously issued without any basis.
I
The record reveals the following. In February 2015,
plaintiff filed his complaint against defendants, alleging they
violated the New Jersey Conscientious Employee Protection Act,
N.J.S.A. 34:19-1 to -14. The specific issues on appeal do not
require that we delve into the details of plaintiff's
substantive claims.
It is undisputed defendants were served with the complaint
soon after it was filed, and that plaintiff filed proof of
service on or about March 6, 2015. In lieu of filing an answer,
defendants filed a motion for summary judgment or, in the
alternative, for a more definite statement, see Rule 4:6-4(a).
On August 14, 2015, defendants' motion for summary judgment was
granted "as to acts in 2012" but was otherwise denied. The
court ordered plaintiff to provide a more definite statement
2 A-5346-16T1 within ten days. Plaintiff did not do so, instead filing a
second amended complaint on September 9, 2015.1
Thereafter, defendants filed a motion to dismiss the new
complaint because plaintiff did not file a definite statement as
directed by the August 14, 2015 order. According to an order
entered on November 20, 2015, that motion was denied but
plaintiff was ordered to file the definite statement within ten
days. The order also indicates defendants had filed another
motion, because the order also dismissed certain defendants from
the second amended complaint and struck the allegations
"relating to events" that occurred before February 7, 2014.
Plaintiff did not provide a copy of the notice in the
record, but it is not disputed that, at some point before the
November 20, 2015 order was entered, the court issued a written
notice to plaintiff advising the action would be
administratively dismissed as to any or all defendants on
December 4, 2015 for lack of prosecution. See R. 1:13-7. The
case was in fact dismissed on the latter date. Plaintiff's
attorney acknowledges he must have received but does not recall
getting the notice.
1 The record does not reveal why plaintiff did not file an amended complaint before he filed a second amended complaint. 3 A-5346-16T1 Plaintiff did not file a more definite statement as
directed by the November 20, 2015 order. Instead, on December
9, 2015, he filed a third amended complaint. Defendants
responded by filing a motion to dismiss on the ground plaintiff
still had not filed a more definite statement in accordance with
the August 14, 2015 and November 20, 2015 orders. That motion
was denied by order dated February 5, 2016; three weeks later,
defendants forwarded their answer to the court for filing.
At the end of March 2016, the court returned the answer to
defendants' attorney, explaining the answer had been rejected as
non-conforming because the complaint had been dismissed on
December 4, 2015. Defense counsel notified plaintiff's counsel
of the dismissal. Notwithstanding, the parties engaged in
discovery, but at some unspecified point defendant ceased
conducting any discovery when plaintiff failed to take any steps
to reinstate the complaint. When in March 2017 plaintiff
endeavored to take defendants' deposition, defense counsel
reminded plaintiff's counsel the case was dismissed.
Plaintiff filed a motion to reinstate the complaint. On
May 28, 2017, the trial court denied the motion because
plaintiff did not "establish any ground for reinstatement of a
pleading dismissed in 2015 and which were communicated at a
minimum of 1 year ago by the adversary counsel." 4 A-5346-16T1 Plaintiff moved for reconsideration of the May 28, 2017
order but on June 10, 2017, the court entered an order denying
the motion. Citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401
(Ch. Div. 1990), the court found plaintiff failed to bring to
its attention any evidence or law it had overlooked when it
considered the underlying motion.
Plaintiff appeals from the May 28, 2017 and June 10, 2017
orders.
II
"Our review of an order denying reinstatement of a
complaint dismissed for lack of prosecution proceeds under an
abuse of discretion standard." Baskett v. Kwokleung Cheung, 422
N.J. Super. 377, 382 (App. Div. 2011) (citations omitted). We
are not bound by the trial court's legal conclusions. Alfano v.
BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App. Div. 2007)
(citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
Rule 1:13-7 provides in relevant part:
(a) [E]xcept as otherwise provided by rule or court order, whenever an action has been pending for four months . . . without a required proceeding having been taken therein as hereafter defined in subsection (b), 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 . . . 5 A-5346-16T1 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. After dismissal, reinstatement of an action against a single defendant may be permitted on submission of a consent order vacating the dismissal and allowing the dismissed defendant to file an answer. . . . If the defendant has been properly served but declines to execute a consent 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. . . .
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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-5346-16T1
JUAN PASTRANA,
Plaintiff-Appellant,
v.
JOSEPH CORONATO, GLENN MILLER, and OCEAN COUNTY, a New Jersey municipal corporation,
Defendants-Respondents. _______________________________
Submitted April 23, 2018 – Decided July 18, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 1305-15.
George J. Cotz, attorney for appellant.
Berry, Sahradnik, Kotzas & Benson, PC, attorneys for respondent (Mary Jane Lidaka, on the brief).
PER CURIAM
Plaintiff Juan Pastrana appeals from the May 28, 2017 order
denying his motion to reinstate his complaint, which had been
administratively dismissed pursuant to Rule 1:13-7 over a year. He also appeals from the July 10, 2017 order denying his motion
for reconsideration of the May 28, 2017 order. Although
plaintiff offers no explanation for his patently unreasonable
delay in moving to reinstate his complaint, we vacate both
orders and remand for reinstatement, as the R. 1:13-7
administrative order was obviously issued without any basis.
I
The record reveals the following. In February 2015,
plaintiff filed his complaint against defendants, alleging they
violated the New Jersey Conscientious Employee Protection Act,
N.J.S.A. 34:19-1 to -14. The specific issues on appeal do not
require that we delve into the details of plaintiff's
substantive claims.
It is undisputed defendants were served with the complaint
soon after it was filed, and that plaintiff filed proof of
service on or about March 6, 2015. In lieu of filing an answer,
defendants filed a motion for summary judgment or, in the
alternative, for a more definite statement, see Rule 4:6-4(a).
On August 14, 2015, defendants' motion for summary judgment was
granted "as to acts in 2012" but was otherwise denied. The
court ordered plaintiff to provide a more definite statement
2 A-5346-16T1 within ten days. Plaintiff did not do so, instead filing a
second amended complaint on September 9, 2015.1
Thereafter, defendants filed a motion to dismiss the new
complaint because plaintiff did not file a definite statement as
directed by the August 14, 2015 order. According to an order
entered on November 20, 2015, that motion was denied but
plaintiff was ordered to file the definite statement within ten
days. The order also indicates defendants had filed another
motion, because the order also dismissed certain defendants from
the second amended complaint and struck the allegations
"relating to events" that occurred before February 7, 2014.
Plaintiff did not provide a copy of the notice in the
record, but it is not disputed that, at some point before the
November 20, 2015 order was entered, the court issued a written
notice to plaintiff advising the action would be
administratively dismissed as to any or all defendants on
December 4, 2015 for lack of prosecution. See R. 1:13-7. The
case was in fact dismissed on the latter date. Plaintiff's
attorney acknowledges he must have received but does not recall
getting the notice.
1 The record does not reveal why plaintiff did not file an amended complaint before he filed a second amended complaint. 3 A-5346-16T1 Plaintiff did not file a more definite statement as
directed by the November 20, 2015 order. Instead, on December
9, 2015, he filed a third amended complaint. Defendants
responded by filing a motion to dismiss on the ground plaintiff
still had not filed a more definite statement in accordance with
the August 14, 2015 and November 20, 2015 orders. That motion
was denied by order dated February 5, 2016; three weeks later,
defendants forwarded their answer to the court for filing.
At the end of March 2016, the court returned the answer to
defendants' attorney, explaining the answer had been rejected as
non-conforming because the complaint had been dismissed on
December 4, 2015. Defense counsel notified plaintiff's counsel
of the dismissal. Notwithstanding, the parties engaged in
discovery, but at some unspecified point defendant ceased
conducting any discovery when plaintiff failed to take any steps
to reinstate the complaint. When in March 2017 plaintiff
endeavored to take defendants' deposition, defense counsel
reminded plaintiff's counsel the case was dismissed.
Plaintiff filed a motion to reinstate the complaint. On
May 28, 2017, the trial court denied the motion because
plaintiff did not "establish any ground for reinstatement of a
pleading dismissed in 2015 and which were communicated at a
minimum of 1 year ago by the adversary counsel." 4 A-5346-16T1 Plaintiff moved for reconsideration of the May 28, 2017
order but on June 10, 2017, the court entered an order denying
the motion. Citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401
(Ch. Div. 1990), the court found plaintiff failed to bring to
its attention any evidence or law it had overlooked when it
considered the underlying motion.
Plaintiff appeals from the May 28, 2017 and June 10, 2017
orders.
II
"Our review of an order denying reinstatement of a
complaint dismissed for lack of prosecution proceeds under an
abuse of discretion standard." Baskett v. Kwokleung Cheung, 422
N.J. Super. 377, 382 (App. Div. 2011) (citations omitted). We
are not bound by the trial court's legal conclusions. Alfano v.
BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App. Div. 2007)
(citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
Rule 1:13-7 provides in relevant part:
(a) [E]xcept as otherwise provided by rule or court order, whenever an action has been pending for four months . . . without a required proceeding having been taken therein as hereafter defined in subsection (b), 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 . . . 5 A-5346-16T1 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. After dismissal, reinstatement of an action against a single defendant may be permitted on submission of a consent order vacating the dismissal and allowing the dismissed defendant to file an answer. . . . If the defendant has been properly served but declines to execute a consent 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. . . .
Subsection (b) provides the language that governs the
resolution of this matter. This subsection states in relevant
part:
(b) The following events constitute required proceedings that must be timely taken to avoid the issuance by the court of a written notice of dismissal as set forth in subsection (a):
(1) proof of service or acknowledgment of service filed with the court; or
(2) filing of answer; or (3) entry of default; or
(4) entry of default judgment. . . .
6 A-5346-16T1 [R. 1:13-7(b) (emphasis added).]
Rule 1:13-7 is "designed to clear the docket of cases that
cannot, for various reasons, be prosecuted to completion."
Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App.
Div. 1989). The rule seeks "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, 422 N.J. Super. at 379. A request for
reinstatement "should be viewed with great liberality." Ghandi
v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007). There
is a preference claims be adjudicated on their merits rather
than bar "a litigant's way to the courtroom" because of
procedural errors. Id. at 198 (internal quotation marks and
citation omitted).
Rule 1:13-7(a) provides the court may issue a notice to a
party when an action has been pending for at least four months,
and inform the party the action will be dismissed if none of the
"required proceeding[s]" defined in subsection (b) has occurred.
One of those required proceedings is filing proof the complaint
was served upon the defendant or defendants. R. 1:13-7(b)(1).
Here, it is not disputed one of the required proceedings
listed in Rule 1:13-7(b) did occur -- plaintiff filed proof of
service with the court, and did so as early as March 2015. In 7 A-5346-16T1 response to being served with the complaint, defendants filed
various motions for summary judgment or, in the alternative,
motions to compel plaintiff to provide a definite statement.
Therefore, because one of the required proceedings in Rule 1:13-
7(b) did occur, the complaint in this matter was mistakenly
administratively dismissed, likely because of the long gap
between the filing of proof of service and the answer. For that
reason, we vacate May 28, 2017 and July 10, 2017 orders and
remand for the reinstatement of the third amended complaint.
We make the following observation. Although we recognize
the complaint was mistakenly dismissed, thereafter, plaintiff
needlessly consumed the court's and defendants' time and
resources by failing to promptly seek reinstatement, which
likely could have been readily accomplished by timely submitting
a consent order.
Plaintiff does not deny he received notice of the dismissal
in December 2015; subsequently, defendants twice reminded him
the complaint needed to be reinstated. While willing to conduct
discovery for a limited period, defendants ultimately ceased
engaging in discovery altogether because the complaint remained
dismissed. On remand, the court may establish a discovery
schedule and trial date, taking into account the time lost due
8 A-5346-16T1 to plaintiff's failure to expeditiously seek the restatement of
his complaint.
Remanded for further proceedings consistent with this
opinion without prejudice to defendants. We do not retain
jurisdiction.
9 A-5346-16T1