On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1062-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Lihotz.
Plaintiff Mario S. Ramirez appeals from the August 22, 2006, order of the Law Division, dismissing his complaint with prejudice after he had failed to appear for trial. Plaintiff also appeals from the September 22, 2006, order that denied his motion to vacate the August 22, 2006, order of dismissal and to restore the case to the active trial list. We reverse and remand the matter to the trial court for further proceedings consistent with this opinion.
This is a personal injury negligence action, arising out of an automobile accident that had occurred on October 15, 2003, between plaintiff's motor vehicle and a motor vehicle operated by defendant Patricia Webster. On March 21, 2005, plaintiff filed his complaint. The matter proceeded through pre-trial discovery and non-binding arbitration without delays. On June 22, 2006, the trial court issued a notice, scheduling the case for trial on August 21, 2006. Upon receipt of the trial notice, plaintiff's counsel forwarded a letter to plaintiff, advising him of the scheduled trial date, instructing him to appear for trial, and requesting that plaintiff contact his law office prior to the scheduled trial date. On Friday, August 18, 2006, plaintiff's counsel received telephone instructions from the trial court, advising that he and his adversary were to appear the following Monday, without their clients, because the case had not been pre-assigned for trial.
On August 21, 2006, the case was assigned for trial, with counsel having been instructed to select a jury that day. Because plaintiff's counsel had not heard from plaintiff, counsel proceeded to his client's home and left a note for plaintiff to contact him. Plaintiff's counsel returned to the courthouse and selected a jury that afternoon, after which both attorneys were released by the court until the following morning. Plaintiff's counsel then proceeded back to his client's home and was informed by plaintiff's cousin that plaintiff had left for Columbia on Friday, August 18, 2006, to attend his daughter's wedding and was not expected to return for thirty days. Plaintiff's counsel immediately contacted the Assignment Judge and defense counsel, advising of the problem and requesting the court cancel the interpreter scheduled for the following morning.
On August 22, 2006, both parties' counsel appeared before the trial judge, and plaintiff's counsel requested that the judge: declare a mistrial; or grant an adjournment in order for him to attempt to have plaintiff return to New Jersey within the next several days; or as a last alternative, that the court dismiss the matter without prejudice. Defense counsel requested that the action be dismissed with prejudice, asserting that plaintiff's testimony was necessary to prove a cause of action. The court granted defendant's motion for involuntary dismissal pursuant to Rule 4:37-2(b) and (d) "[b]ecause the jury has been sworn in . . . I do [not] think I have any choice in this matter. I have to grant [the Rule] 4:37-2 motion for [an] involuntary dismissal which is with prejudice." In addition, the judge directed plaintiff's counsel to reimburse the court for costs incurred in engaging an interpreter in anticipation of trial in the amount of $573. A confirming order was entered that day.
On September 6, 2006, plaintiff filed a motion seeking to vacate the August 22, 2006, order of dismissal and to restore the case to the active list. Although the judge denied the motion, she did reduce the amount of costs that plaintiff's counsel was directed to pay to $250. A confirming order was entered on September 22, 2006.
On appeal, plaintiff argues that the trial judge erred when she dismissed his case with prejudice because there were appropriate lesser sanctions that could have been imposed. We agree.
Rule 4:37-2(b) is not triggered merely by impaneling a jury. A defendant may move for involuntary dismissal under the rule when plaintiff has "completed the presentation of the evidence on all matters other than the matter of damages . . . on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." R. 4:37-2(b). On the motion, the trial court applies the same evidential standard as on a motion for judgment at the close of evidence, R. 4:40-1, or after the verdict, R. 4:40-2(b), or on a motion for summary judgment, R. 4:46-2. Verdicchio v. Ricca, 179 N.J. 1, 30 (2004); Schneider v. Simonini, 163 N.J. 336, 360 (2000). Here, plaintiff never commenced presenting evidence because he failed to appear to prosecute the case.
We believe the issue of plaintiff's non-appearance should have been addressed under Rule 1:2-4(a). Although one could argue that the rule does not apply because plaintiff appeared for trial through counsel ("no appearance is made on behalf of a party"), we are satisfied that, when read in conjunction with R. 1:1-2, the rule is applicable.*fn1 The rule permits the court to impose reasonable sanctions against an attorney or a party who fails to appear on the scheduled trial date, including "(c) the dismissal of the complaint . . . or (d) such other action as it deems appropriate." R. 1:2-4(a). See Audubon Volunteer Fire Co. v. Church Const. Co., 206 N.J. Super. 405, 407 (App. Div. 1986).
In Audubon, when addressing the denial of a defendant's motion to vacate a default and file an answer out of time, we held: "[t]here are ways short of dismissal or default to deal with slowdowns which cost a party money, wastes a lawyer's time, prejudices a plaintiff's ability to collect a judgment or a defendant's ability to defend against one, or unjustifiably consume judicial resources." Ibid. We suggested that the court might look to Rule 1:1-2 in resolving issues of delay: a "court may proceed, in the absence of [a] rule, in any manner compatible with purposes of securing a just determination, simplicity in procedure, fairness in administration, and elimination upon justifiable expense and delay." Ibid. (citing R. 1:1-2). The same may be said here.
Moreover, there is a general reluctance to impose the Draconian sanction of dismissal with prejudice, or without prejudice where the Statute of Limitations has run for most rule violations, where the party has not been contemptuous or caused prejudice to his or her adversary. Brun v. Cardoso, 390 N.J. Super. 409, 419-20 (App. Div. 2006); J. Roberts & Son v. Hillcrest, 363 N.J. Super. 485, 490-91 (App. Div. 2003); Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267-69 (App. Div. 1989). "Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not to bar a litigant's way to the courtroom," Audubon Volunteer Fire Co., supra, 206 ...