On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1310-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Grall.
Plaintiffs Sophia Costa and Jose Catarino appeal from the denial of their motion to reinstate a complaint in which they alleged that defendant James Reaves breached their contract for construction and violated the Consumer Fraud Act. Plaintiffs' prior attorney did not effectuate service within the time allowed. As a consequence, the complaint was administratively dismissed without prejudice pursuant to Rule 1:13-7. Plaintiffs retained new counsel, and that attorney served the complaint and filed a motion for reinstatement within six months of the order of dismissal; defendant did not establish prejudice that he suffered between the dismissal and motion to reinstate. Accordingly, we reverse.
The parties entered into the contract on or about February 17, 2000. Plaintiffs' former attorney filed the complaint on February 7, 2006. It was administratively dismissed for failure to file proof of service on September 2, 2006. Plaintiffs retained new counsel, and defendant was served on February 5, 2007. Plaintiffs filed a motion to reinstate their complaint on March 7, 2007.
Defendant opposed the motion. He contended that the delay of service was not warranted because he continually maintained his office at the same address since February 17, 2000. He asserted that he was prejudiced by the delay because he could not locate the contract, any invoices or checks related to performance of the contract or a release and termination of the contract that he alleged plaintiffs executed "approximately 8 [eight] to 12 [twelve] months after February 17, 2000."
The judge denied plaintiffs' motion. He concluded that plaintiffs failed to show good cause for a delay that was prejudicial to defendant.
We recognize that, depending upon the date of the breach, the statute of limitations may have run. It is well-settled, however, that when a complaint is reinstated, the original filing date controls. See Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 268 (App. Div. 1989).
"Rule 1:13-7(a) is an administrative rule 'designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion.'" Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007) (quoting Mason, supra, 233 N.J. Super. at 267). Because dismissals pursuant to Rule 1:13-7(a) are without prejudice, "the right to 'reinstatement is ordinarily routinely and freely granted when plaintiff has cured the problem that led to the dismissal even if the application is made many months later.'" Ibid. (quoting Rivera v. Atl. Coast Rehab. Center, 321 N.J. Super. 340, 346 (App. Div. 1999)).
In Ghandi, this court considered the import of an amendment to Rule 1:13-7(a) providing for reinstatement after administrative dismissal upon a showing of "good cause." Id. at 196-97. We held that "[n]otwithstanding the adoption of the good cause standard, . . . absent a finding of fault by the plaintiff and prejudice to the defendant, a motion to restore under the rule should be viewed with great liberality." Id. at 197. Because the delay in Ghandi "was attributable to certain transgressions of plaintiff's counsel, through no fault of plaintiff," and there was no claim of showing of prejudice, we reversed the order denying plaintiff's motion to reinstate. Ibid.
In this case, the delay between dismissal, service of defendant and the filing of the motion to reinstate was relatively brief, approximately six months. See Stanley v. Great Gorge Country Club, 353 N.J. Super. 475, 485-86 (Law Div. 2002) (applying a rebuttable presumption of "good cause" when restoration is sought within one year of dismissal).*fn2 Within the six-month period, plaintiffs retained a new attorney who effectuated service and filed the motion to reinstate. Under these circumstances, none of which indicate delay attributable to plaintiffs' neglect of the litigation or an effort to seek advantage in the litigation, we conclude that the judge erred in finding that plaintiffs did not show good cause sufficient for reinstatement.
We also conclude that defendant did not demonstrate prejudice sufficient to preclude reinstatement. Defendant must show prejudice attributable to the delay between the dismissal without prejudice and the motion to reinstate. See Rivera, supra, 321 N.J. Super. at 347 (discussing the need for a showing of prejudice occurring in the relevant time-frame); Moschou v. De Rosa, 192 N.J. Super. 463, 466-67 (App. Div. 1984) (prejudice shown where documents were destroyed after the statute of limitations had run but before the complaint was served); see also Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 345-46 (1984) (discussing measure of prejudice in reversing dismissal with prejudice for thirteen-month delay in service of summons).
Here, defendant simply alleged that he could not locate the documents. He did not indicate that he lost the ability to locate the documents between the dismissal with ...