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J. Roberts and Son, Inc. v. Hillcrest Memorial Company

October 29, 2003

J. ROBERTS AND SON, INC., ALBERT KOHLMEYER, INDIVIDUALLY AND TRADING AS WILLIAM B. SNELBAKER AND SON AND W.B. LIPPENCOTT AND SON, PLAINTIFFS-APPELLANTS,
v.
HILLCREST MEMORIAL COMPANY, DEFENDANT-RESPONDENT, AND GARDEN STATE CEMETERY COMPANY, WOODBURY MEMORIAL PARK CEMETERY, INC., EGLINGTON CEMETERY COMPANY, INC., FUNERAL AND CEMETERY MERCHANDISE COMPANY, WEST JERSEY MEMORIAL COMPANY, GATES OF HEAVEN CEMETERY, INC., JESSIE PEBBLY, INDIVIDUALLY AND/OR T/A GARDEN STATE CEMETERY, EGLINGTON CEMETERY, WOODBURY MEMORIAL PARK CEMETERY, ESTATE OF CAROL PEBBLY, INDIVIDUALLY AND/OR T/A GARDEN STATE CEMETERY COMPANY, INC., WOODBURY MEMORIAL PARK CEMETERY INC., METRO BURIAL AND CREMATION SERVICES, INC., JAMES MORROW, LINDA LACEY, CHARLES"CHUCK" KEARNS, LISA STANIKER, BARBARA LONG, AND ANNE ROWAN, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L-2158-01.

Before Judges King, Lintner and Lisa.

The opinion of the court was delivered by: Lintner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 1, 2003

This appeal requires us to determine whether an administrative dismissal of a complaint under R. 1:13-7 precludes a plaintiff from filing a subsequent similar complaint without a showing of good cause. We hold that the good cause requirement of the rule applies to attempts by a plaintiff to have an originally filed complaint reinstated. It does not prevent the filing of a second complaint with the same allegations, following an administrative dismissal.

The relevant facts are substantially undisputed. On March 30, 2001, plaintiffs, who are in the monument and grave memorial business, filed a complaint in the Camden County Law Division naming several defendant cemeteries and monument companies, and alleging that they had improperly sold cemetery monuments, burial markers, and bronze memorials, in violation of the New Jersey Cemetery Act, N.J.S.A. 8A:5-3. Instead of answering the complaint, a number of the cemetery defendants, represented by the same counsel, moved successfully to quash service. Thereafter, plaintiffs were notified by the Camden County Law Division that the complaint would be administratively dismissed without prejudice, pursuant to R. 1:13-7, if they failed to file proofs of service or if answers were not filed.*fn1 Between October 6, 2001 and November 17, 2001, plaintiffs' complaint was dismissed against all but one defendant, Gates of Heaven Cemetery, Inc. (Gates of Heaven), which had filed an answer. According to plaintiffs, when they realized that Camden County was not the proper venue, they permitted the Camden County complaint to be administratively dismissed for lack of prosecution.

On December 6, 2001, plaintiffs filed a subsequent complaint with the Law Division in Gloucester County, mirroring the allegations in the Camden County complaint. On February 21, 2002, one of the defendants, Hillcrest Memorial Park Company, moved to dismiss plaintiffs' Gloucester County complaint, asserting that the Camden County Complaint was still active because Gates of Heaven had filed an answer, even though plaintiff had"served the wrong Gates of Heaven." Hillcrest maintained that because the Camden County complaint was still pending against Gates of Heaven, plaintiffs' Gloucester County complaint, which contained a certification that the matter in controversy was not the subject matter of other proceedings, was not in compliance with R. 4:5-1(b)(2). Hillcrest's motion also sought to quash the Gloucester County complaint, contending that the summons was not served within ten days after the filing of the complaint pursuant to R. 4:4-1.*fn2 On April 11, 2002, plaintiffs filed a voluntary stipulation dismissing their Camden County complaint against Gates of Heaven.

Oral argument was held before the motion judge on May 24, 2002. Hillcrest argued that because the complaints were identical, the provisions of R. 1:13-7 preclude the matter from proceeding in Gloucester County and require plaintiff to seek reinstatement in Camden County upon a showing of good cause. Accepting Hillcrest's argument, the motion judge concluded:

[T]his motion that is before me to dismiss the complaint, it relates to Rule 1:13-7, in which the virtually identical complaint had been filed in Camden County, and, among other things, was dismissed for lack of prosecution.

As to answer to the question, after such dismissal, can the plaintiff then go to another county where there may be venue and file the complaint again, I believe that the sentence in that Rule 1:13-7 has meaning, which states,"[r]einstatement of the action after dismissal may be permitted only on motion for good cause shown."

Therefore, I think that the movant is correct, that there are important reasons why pursuit of this action needs to proceed only by application to Camden County on Motion for Good Cause Shown as to reinstatement of the action there. Then as to whether the matter would proceed in that county or another county is just a matter of determination of which is the most appropriate venue.

I am going to, therefore, grant defendant's Motion for Dismissal pursuant to the application of Rule 1:13-7. Motion granted.

On appeal, Hillcrest argues that R. 1:13-7"bars plaintiffs from filing their complaint in Gloucester County after the same complaint was dismissed for lack of prosecution in Camden County." It maintains as it did before the motion judge that the complaints are the"same" because they seek the identical relief.

R. 1:13-7(a) states in pertinent part: Except... as otherwise provided by rule or court order, whenever any civil action shall have been pending in any court for four months without any required proceeding having been taken therein, the court shall issue written notice to the parties 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, proof of service of process has been filed, or an answer or other response by way of motion or acknowledgement has been filed, or a motion has been filed asserting that the failure of service or the filing of an answer is due to exceptional circumstances. If the plaintiff fails to respond as herein prescribed, the court shall enter an order of dismissal without prejudice as to any named ...


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