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Munifo v. Weiss Supermarkets

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 27, 2007

CARLO J. MUNIFO, PLAINTIFF-APPELLANT,
v.
WEISS SUPERMARKETS, INC., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4900-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 24, 2007

Before Judges Lihotz and Simonelli.

Plaintiff appeals from the order of September 22, 2006, dismissing his complaint without prejudice. We affirm.

Plaintiff alleges he suffered from food poisoning as a result of eating a lasagna dinner at the home of Brenda and Teresa Nussbaum on June 19, 2004. The Nussbaums purchased the lasagna dinner from defendant Weiss Supermarkets, Inc. (Weiss). On October 19, 2004, plaintiff filed a complaint against Weiss in the Sussex County Law Division, Special Civil Part (Sussex Complaint). Weiss filed a third-party complaint against third-party defendant Biazzo Dairy Products, Inc. (Biazzo).

On March 7, 2005, the trial judge dismissed the Sussex Complaint for plaintiff's failure to appear for trial. On February 24, 2006, on plaintiff's motion, the court reinstated the Sussex Complaint and ordered the parties to, among other things, serve and respond to discovery requests, and submit expert reports. The court also ordered plaintiff to pay defendant's counsel fees due to his failure to properly request an adjournment of the trial.

On May 30, 2006, the judge dismissed the Sussex Complaint without prejudice as a result of plaintiff's failure to appear for trial. On August 25, 2006, the judge refused to reinstate the Sussex Complaint or dismiss it with prejudice "until it is certain plaintiff is unable to prove excusable neglect for failing to appear for trial on two occasions." The judge ordered plaintiff to pay $540 to defendant's attorney for failure to appear for the March 7, trial, and stated, "If plaintiff moves to reinstate, and if [the] court so orders, [the] court may then consider attorney's fees for [the] 5/30/06 non-appearance."

Plaintiff did not move to reinstate the Sussex Complaint or pay the ordered attorney's fees. Instead, on or about June 19, 2006, plaintiff filed a complaint in the Camden County Law Division against Weiss, Biazzo and the Nussbaums (Camden Complaint). Plaintiff claims he filed the complaint in Camden because he lived there. It appears from his merits brief, however, he was not happy with what happened in Sussex County.

Weiss filed a motion to dismiss the Camden Complaint. On September 22, 2006, the trial judge granted the motion, finding plaintiff was improperly forum shopping. We agree with the trial court's determination to dismiss the Camden Complaint. However, the reason for dismissal should have been based on improper venue shopping.

Plaintiff originally laid venue in Sussex County in accordance with Rule 6:1-3(a). Once venue was established, the case was governed by Rule 4:3-3(b), which requires, in relevant part, that a motion to change venue "shall be filed not later than 10 days after the expiration of the time prescribed by R. 4:6-1 for the service of the last permissible pleading. . . ." Otherwise, "objections to venue shall be deemed waived." R. 4:3-3(b).

Here, plaintiff never filed a motion to change venue, and the ten days for him to do so are long gone. Thus, venue of this matter remains in Sussex County, and the Camden Complaint was properly dismissed.

Affirmed.

20071227

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