On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-161-04.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fall, C.S. Fisher and Miniman.
In this matter, we consider whether the trial judge erred in granting a voluntary dismissal of this action and in permitting plaintiff to pursue an identical, newly-filed action when plaintiff's purpose in seeking a voluntary dismissal was to eviscerate the discovery end date, moot defendant's motion for summary judgment and extinguish an imminent trial date. Because the order failed to meet the requirements of R. 4:37-1(b) and hindered the fair and efficient administration of justice, we reverse.
The early history of this case was uneventful. On February 13, 2004, plaintiff Walter Shulas (plaintiff) filed a complaint alleging he suffered personal injuries when, on November 29, 2002, he was performing renovation work on a deck at the home of defendants Joseph and Patricia Estabrook (defendants). Defendants filed an answer on March 26, 2004; their answer included a third-party complaint seeking contribution and indemnification from B.B.J., Inc., plaintiff's employer. The complaint was later amended to allege that the incident occurred on June 6, 2003, and not on November 29, 2002 as asserted in the original complaint.
On April 18, 2005, the judge entered an order which extended the previously established discovery end date to May 19, 2005. This order also adjourned the arbitration then scheduled for May 12, 2005 to June 2, 2005. The matter was arbitrated on June 2, 2005; defendants filed a demand for a trial de novo on June 21, 2005. B.B.J.'s motion for summary judgment was granted on June 24, 2005, and a trial date of August 22, 2005 was assigned, but later adjourned to September 26, 2005.
Defendants moved for summary judgment, arguing that B.B.J. was responsible for plaintiff's injuries and also that plaintiff's claim could not be sustained without an expert's testimony. The motion's return date of August 5, 2005 was adjourned to September 9, 2005 at plaintiff's request.
Without leave of court, on August 5, 2005, plaintiff served for the first time a liability expert report. Defendants predictably and promptly objected. On Tuesday, September 6, 2005 -- three days before the adjourned return date of defendants' motion for summary judgment -- plaintiff telecopied to the court and defense counsel his attorney's certification as well as a motion for a voluntary dismissal, which purported to be returnable September 9, 2005. These papers were untimely because R. 4:46-1 requires that papers in response to motions for summary judgment, including cross-motions, must be filed and served not later than ten days before the return date of the motion for summary judgment.*fn1 In his certification, plaintiff's attorney advised for the first time that, on May 27, 2005, he had filed another complaint "with a new, more recent docket number," and that he wished to dismiss the complaint filed in this action and proceed on the new complaint.*fn2
Although he argued that his claim did not require expert evidence, plaintiff asserted that he had attempted to communicate with defense counsel in the preceding weeks to deal with what he referred to as "the logistical issue" concerning his submission of the expert report beyond the discovery end date. After referring to this problem, and the fact that plaintiff was apparently "still treating and had surgery on May 5, 2005," plaintiff's counsel represented his purpose for moving for a voluntary dismissal in the following way:
A new complaint was filed in a timely manner. I am asking the [c]court to allow the voluntary dismissal of the old complaint. I would prefer it if we could use the discovery in the old lawsuit and perhaps agree on something shorter than the usual discovery period for the new lawsuit.
If this motion is granted, it is unnecessary for the [c]court to consider the issues raised by defendant's pending motion for summary judgment.
Defense counsel telephoned the judge's chambers on Thursday, September 8, to inquire whether oral argument would be heard the next day. The judge's law clerk advised that defendants' summary judgment motion had been rendered moot by plaintiff's voluntary dismissal motion. When defense counsel understandably questioned this, the law clerk stated, according to ...