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Durham v. Inn

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 8, 2007

WALTER DURHAM, PLAINTIFF-APPELLANT,
v.
RAMADA INN, RAMANLAL N. GANDHI AND RAJ RANDERIA, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8022-02 and L-1312-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 29, 2007

Before Judges S.L. Reisner and Seltzer.

Plaintiff, Walter Durham, appeals from a trial court order dated April 12, 2006, dismissing his complaint for lack of in personam jurisdiction over defendants Rajesh Randeria, Sanjay Gandhi, Ramada Inn and Riverhouse, and Newport News SAI, t/a Ramada Inn. Plaintiff also appeals from a May 26, 2006 order denying his motion to restore the default as to "Ramada Inn." We affirm.

On February 7, 2005, plaintiff filed a complaint contending that while he was a guest in the "Ramada Inn" motel in Newport News, Virginia, on or about July 14, 2003, he was injured when a bed collapsed. The complaint alleged that "[a]t all times relevant herein the defendant RAMAD[A] INN, had principal offices located in Middlesex County, State of New Jersey." Plaintiff served the "Ramada Inn" by certified mail sent to the address of the motel in Virginia. When Ramada Inn did not file an answer, plaintiff obtained entry of default against Ramada Inn on July 28, 2005. Plaintiff's application did not comply with Rule 4:4-4(b)(1), in that it was not supported by an "affidavit . . . that despite diligent effort and inquiry personal service cannot be made" within New Jersey in accordance with Rule 4:4-4(a)(6).

Plaintiff amended the complaint on November 18, 2005, to name the individual defendants who owned the motel. Defendants Randeria and Gandhi filed an answer, followed by a motion for summary judgment on behalf of themselves and their motel, known as Ramada Inn and Riverhouse, which they owned through a corporation called Newport News SAI, t/a Ramada Inn. That motion was granted in an order dated April 12, 2006, which granted summary judgment to defendants Randeria, Gandhi, "and Ramada Inn and Riverhouse, and Newport News SAI, t/a Ramada Inn."*fn1 Plaintiff then filed a motion seeking to reinstate the default against Ramada Inn. We conclude that motion was properly denied by order dated May 26, 2006.

Although plaintiff now contends that the "Ramada Inn" named in the caption of his complaint was intended to refer to the Newport News SAI corporation, that is not what his complaint indicated and not what he briefed in the trial court. In his complaint and in his brief opposing summary judgment in the trial court, plaintiff contended that the "Ramada Inn" named in his complaint was a corporation with offices in New Jersey. The complaint described Ramada Inn as having its "principal offices" in New Jersey. However, he did not serve his complaint on that corporation in New Jersey at its principal offices. Rather, he mailed a copy of the complaint to "Ramada Inn" at the address of the motel in Virginia.

Premised on the fact that someone at the motel signed for the certified mail, he contends that he made proper service on the Ramada Inn Corporation. However, Rule 4:4-4 requires that a corporate defendant be served in New Jersey if possible and that it be served by personal service before a default may be entered premised on failure to answer. See R. 4:4-4(a)(6) and -4(c). A defendant may not be served out-of-state unless plaintiff's attorney certifies that the defendant cannot, "after diligent effort and inquiry," be served within the State. R. 4:4-4(b)(1). Therefore, to the extent the complaint purported to name the New Jersey corporation Ramada Inn (or what plaintiff now contends is its parent entity, Cendant Corporation) as a defendant, the complaint was never properly served, and default should not have been entered. We conclude that the May 26, 2006 order properly denied plaintiff's motion to "restore default" against Ramada Inn.

However, because the April 12, 2006 summary judgment order only granted dismissal against the Virginia defendants (albeit one of those defendants was "trading as" Ramada Inn), and the complaint by its terms named Ramada Inn, a New Jersey corporation, as a defendant, plaintiff is entitled to file a motion to administratively re-open his complaint against that New Jersey defendant only and may attempt to make service in New Jersey. We intimate no view as to the merits of that complaint.*fn2

Affirmed.


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