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Weber v. Mayan Palace Hotel & Resorts

December 27, 2007

ELENA WEBER, PLAINTIFF-APPELLANT,
v.
MAYAN PALACE HOTEL & RESORTS AND BAKAL RESTAURANT, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10234-04.

The opinion of the court was delivered by: S.L. Reisner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 3, 2007

Before Judges Weissbard, S.L. Reisner and Gilroy*fn1 .

Plaintiff Elena Weber appeals from a trial court order dated November 17, 2006, denying her motion to reinstate her complaint, and from a January 26, 2007 order denying her motion for reconsideration. We affirm the trial court orders, but modify them to provide that they are without prejudice to plaintiff's right to serve the defendant within thirty days of the date of this opinion and, within fourteen days thereafter, to file another motion to reinstate the complaint. In so holding, we conclude that a plaintiff may properly serve a defendant with a complaint that has been dismissed pursuant to Rule 1:13-7(a).

I.

Plaintiff filed a complaint on December 16, 2004, alleging that on December 17, 2002, she slipped and fell in a restaurant located in the Mayan Palace Hotel and Resorts in Acapulco, Mexico. Her complaint was administratively dismissed without prejudice for lack of prosecution on July 15, 2005, pursuant to Rule 1:13-7(a).

On September 7, 2006, plaintiff filed a motion to reinstate the complaint.*fn2 The motion was supported by a certification from plaintiff's counsel, asserting that prior to the complaint being administratively dismissed he had been unable to locate defendants and therefore could not serve them. He attached documents purporting to show that in January 2005, he had attempted to serve the restaurant and the hotel at an address in Acapulco, but the certified mail was unclaimed. However, he attested that he eventually contacted the Mayan Resorts Customer Service phone number and was advised of a post office box to which he could send process. He contended that "on March 2006, defendants were served." He attached a copy of a certified letter addressed to "Mayan Palace Acapulco" at a post office box in Houston, Texas, together with a signed certified mail receipt. He also attached evidence that he had faxed a copy of the complaint to defendant.

A brief was filed in opposition to plaintiff's motion by "an affiliate of an improperly named defendant in this matter" for the limited purpose of disputing jurisdiction. Defendant's brief contended that plaintiff had attempted to serve the wrong defendant, that the hotel where plaintiff fell was owned by a Mexican corporation called Desarrollo Marina Vallarta, S.A. de C.V. (DMV) and was operated by a Mexican affiliate called Admivac S.A. de C.V. The brief also contended that Canamere, the entity plaintiff served by certified mail at the Texas post office box, was not the proper defendant, that plaintiff's delay in serving the complaint would prejudice the defense, and that the court lacked in personam jurisdiction over the Mexican corporations. The brief also contended that plaintiff failed to show good cause to reinstate the complaint, in that there was no explanation for the long delay in filing the motion to reinstate.

Notably, defendant's brief was not accompanied by any certification, affidavit, or other legally competent evidence to support the factual contentions made in the brief. Rather, the brief writer improperly attached various documents to the back of the brief without authenticating them. See Celino v. General Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986). On the other hand, plaintiff has not suggested that any of the attached documents were not authentic or that his client did not receive them.

The documents show that in connection with her Mexican vacation, plaintiff signed a series of documents, including a one-page "Mayan Palace Vacation Club Agreement for Biennial Lodging Rights and Service" which directed that monthly payments were to be sent to DMV at a post office box in Dallas, Texas.

This document also listed at the bottom of the page an address for DMV at San Gabriel No 679-1 Col. Chapalita, Guadalajara 44790, Jalisco, Mexico. When we questioned him at oral argument, defense counsel agreed that DMV was the proper party defendant (without of course conceding jurisdiction or any other issue), and agreed that DMV's proper address for service of process was the Guadalajara address listed at the bottom of the one-page Agreement for Biennial Lodging Rights and Service.

A much more detailed agreement which plaintiff also signed specifically recited at paragraph 12 that the agreement was governed by the laws of Mexico, that jurisdiction over the enforcement of the agreement was with the courts of Guadalajara, Jalisco, Mexico, and that any cancellation notices from the customer should be sent to the Administrative Center at an address in Guadalajara that was different from that on the one-page agreement. The agreement was signed by plaintiff and by a ...


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