Defendant moves for an involuntary dismissal pursuant to Rule 3:41-2, for failure of the plaintiff to cause a summons to issue within five days after filing the complaint, and for failure of the plaintiff to prosecute the action for six months after filing the complaint.
From the affidavits submitted it appears that the suit was brought in two counts, one in warranty and the second in negligence, wherein the plaintiff alleges that on August 29, 1947, he purchased a package of salted nuts manufactured by the defendant and while eating them was injured by a foreign substance concealed therein. On August 26, 1949, plaintiff filed his complaint with the Clerk of the Superior Court. On
March 30, 1950, the defendant was served with a summons and a copy of said complaint. The summons is dated March 29, 1950.
Plaintiff's counsel asserts in his affidavit that he had been "under the impression that the summons was issued within the statutory period under the new rules;" that he had in his employ, when this action was commenced, an attorney who took care of all pleadings; that it was "through an inadvertence," and "not through sheer neglect," that the summons and complaint had not issued until "six months from the date of filing the complaint." (The period actually was over seven months.)
"For failure of the plaintiff to cause a summons to issue within 5 days after filing the complaint or to prosecute an action for 6 months, or to comply with these rules or any order of court, the court in its discretion may on motion of defendant dismiss an action or any claim against him."
The obvious purpose of the above rule is to keep a plaintiff's interest active. It requires a litigant to do more than deposit a pleading in the clerk's office. The rule provides that the court may exercise its discretion in determining whether or not to dismiss an action. The lawful exercise of discretion excludes mere caprice or arbitrary action. In Beronio v. Pension Commission of Hoboken , 130 N.J.L. 620 (E. & A. 1943), Justice Heher, in remarking upon judicial discretion, said:
"In the words of Lord Mansfield, judicial discretion means 'sound discretion, guided by law. It must be governed by rule, not by humour. It must not be arbitrary, vague and fanciful, but legal and regular.' Rex v. Wilkes , 4 Burr. 2527, 2539."
The rule would lose its efficacy if the court without good cause or extenuating circumstances should fail to enforce it. Conceivably, there may be numerous instances where the court in the exercise of its discretion will refuse to dismiss an action, e.g. , illness of counsel; but the court must be given
a valid reason why the action should not be dismissed when it appears that the summons has not issued within five days after the filing of the complaint, or the action is not prosecuted for six months. If the reason given is not sound, the discretionary exercise in ...