On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7950-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
Plaintiff Jung Y. Cho, appeals from a July 28, 2006, order denying her motion to reinstate her automobile accident personal injury lawsuit, after her complaint was dismissed with prejudice on May 30, 2006, for failure to comply with orders of December 16, 2005, (requiring plaintiff to appear at depositions within thirty days) and February 21, 2006, (dismissing plaintiff's complaint without prejudice)*fn1 for failing to appear at depositions.
Plaintiff asserts in her appellate brief that she did not oppose entry of the December 16 order because she was traveling back and forth to Korea attending to a family emergency and could not appear at depositions. According to plaintiff, on June 3, 2006, she received, without prior notice, the May 30 order dismissing her case with prejudice. The order indicated that defendant's motion to dismiss with prejudice was unopposed. In the motion to reinstate, plaintiff's counsel represented that he never received defendant's motion to dismiss with prejudice and that the reason he had not filed opposition to the earlier orders was because he had lost contact with plaintiff because of her need to travel to Korea. He also indicated that plaintiff was available to appear at depositions between July 24 and August 5, 2006.
At oral argument on plaintiff's motion for reconsideration, the motion judge asked plaintiff's counsel if he had received a telephone call from the judge's chambers inquiring whether counsel intended to oppose the application to dismiss with prejudice because there had been a prior order entered dismissing the complaint without prejudice. Plaintiff's counsel replied that he had not received such a telephone call. The judge further indicated that it is his practice to write a letter inquiring whether there is opposition to a motion to dismiss with prejudice following the entry of an order of dismissal without prejudice. However, because the judge had been recently transferred from the criminal to civil division at the time defendant filed the motion to dismiss with prejudice, he would have had his office call plaintiff's counsel, instead of writing. Plaintiff's counsel responded, acknowledging that he received the February 21 dismissal "without prejudice" order but never received the May 30 motion or order. Notwithstanding plaintiff's counsel's representations, the judge, relying on counsel's knowledge of the prior February 21 without prejudice order, denied the motion, concluding that counsel had appropriate notice from prior motions.
Rule 4:23-5(a)(2) entitles a defendant to move to dismiss a complaint with prejudice after the expiration of ninety days from the date of a dismissal without prejudice for plaintiff's failure to comply with a demand for discovery. The rule, however, makes the appearance on the return date of the motion to dismiss with prejudice "mandatory for the attorney for the delinquent party." Had the judge's office mandated plaintiff's counsel's appearance, it could have been determined, at the time of the return date, whether plaintiff remained out of contact with counsel, thus permitting entry of the with prejudice dismissal order. Moreover, the judge should have required defendant to present proof that plaintiff had been duly served with the motion to dismiss with prejudice, and made a determination respecting that issue.
We are somewhat hampered by defendant's failure to file a respondent's brief opposing this appeal. Because the mandated Rule 4:23-5(a)(2) procedure was not followed and the judge incorrectly relied on prior motions and orders to determine that plaintiff should have been aware that defendant would file a motion to dismiss with prejudice after the expiration of the ninety-day period, we are constrained to reverse the order denying reinstatement and remand for further proceedings. On remand, the court should consider whether plaintiff's counsel was served with defendant's motion and apply appropriate sanctions if it is determined that counsel indeed received the motion papers, contrary to his representations. A determination should also be made concerning plaintiff's availability for depositions and, if available, reinstate the complaint, subject to plaintiff's mandatory appearance at depositions.