On appeal from the Superior Court, Law Division, Morris County.
Long, Muir, Jr. and Keefe. The opinion of the court was delivered by Keefe, J.s.c. (temporarily assigned).
The issue to be decided on this appeal is whether a reinstated complaint, previously dismissed by the court pursuant to R. 1:13-7(a) (dismissal of inactive cases), is subject to the defense of the statute of limitations when the defense could not have been asserted prior to the dismissal. The trial judge held that it was and dismissed the complaint. The plaintiffs appeal and we reverse.
Plaintiffs Margarete S. Mason and David A. Mason filed a complaint against defendant Nabisco Brands, Inc. (Nabisco) and four fictitiously named defendants, claiming that all defendants were liable for injuries sustained by Margarete S. Mason when she was caused to fall on an accumulation of snow and/or ice in the parking lot of premises at 195 DeForest Avenue in East Hanover, New Jersey. The accident was alleged to have taken place on March 14, 1984, and the complaint was filed on March 14, 1986. Plaintiffs' counsel did not issue a summons within ten days as required by R. 4:4-1. Because the file remained inactive for six months, the clerk of the court listed the matter for dismissal under R. 1:13-7(a). Plaintiffs' counsel failed to file an affidavit opposing the dismissal, as permitted by the rule, resulting in a dismissal order being entered on January 31, 1987. The dismissal was "without prejudice." R. 1:13-7(a).
By motion dated January 12, 1988 and made returnable on February 5, 1988, plaintiffs moved to vacate the order of dismissal and to reinstate the complaint to the active trial calendar. The motion was supported by the certification of
plaintiffs' counsel. Counsel explained that the case had previously been handled by a partner in the firm who was suffering from severe alcohol addiction and had required inpatient treatment in October, 1987. The certification explained that, after the attorney's illness became known, it was learned that several files he had been handling "were in various stages of disarray and some Complaints had, in fact, been dismissed for various reasons of inattention." On February 5, 1988, the motion judge entered an order vacating the January 31, 1987 order of dismissal and ordered the restoration of the complaint to the trial list, subject to counsel's payment of a fifty dollar fine to the Clerk of the Superior Court. On February 10, 1988, a summons was issued to Nabisco and sent to the sheriff of Morris County for service. Nabisco was served on February 29, 1988 and filed an answer on April 20, 1988. The answer raised the defense that the summons was not issued pursuant to R. 4:4-1 and that it was barred by laches. Nabisco did not raise the defense of the statute of limitations. The answer also contained a cross-claim against A-L Services Inc, (A-L) seeking indemnification and/or contribution from it based on A-L's contract with Nabisco for snow and ice removal services. On the same date, Nabisco filed a motion seeking a dismissal of plaintiffs' complaint for failure to comply with R. 4:4-1. On May 16, 1988, plaintiff filed an amended complaint naming A-L in the place of one of the fictitiously named defendant corporations. However, an answer on behalf of A-L was not filed until on or about July 13, 1988. A-L's answer contained a statute of limitations defense. However, A-L Services did not join in Nabisco's motion or file its own motion.
Oral argument on Nabisco's motion was heard on June 10, 1988. The trial judge, sua sponte, raised the issue of the statute of limitations as a bar to the reinstatement of the complaint, asked the parties to brief the issue, and rescheduled oral argument. Nabisco did not move to amend its answer to assert the defense of the statute of limitations. On the rescheduled motion day, the judge denied Nabisco's motion to
dismiss the complaint for failure to issue the summons within ten days because the judge found no prejudice to Nabisco resulting from the delay. However, the judge vacated the order of February 5, 1988 restoring the complaint to the trial calendar and ordered its dismissal pursuant to the statute of limitations, N.J.S.A. 2A:14-2.*fn1 Because the July 19, 1988 order had the effect of never having plaintiffs' complaint restored, A-L received the benefit of the judgment. Both Nabisco and A-L are represented by the same counsel on appeal. Therefore, they shall be referred to hereinafter collectively as the defendants.
R. 1:13-7 is an administrative rule designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion. Often notice to the attorney of the court's intention to dismiss the action will serve to stimulate a renewed interest in the case. The problem which generates the notice is usually resolved and the case is not dismissed. When the notice does not have that salutary affect, the case is dismissed. However, the rule provides that "[u]nless otherwise ordered by the court, a dismissal under this rule shall be without prejudice." It is therefore important to determine what the words "without prejudice" mean in the context of the rule.
Typically, "without prejudice" means that there has been no adjudication on the merits of the claim and that a subsequent complaint alleging the same cause of action will not be barred simply ...