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Tapia v. Abdelmessih


June 26, 2008


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6833-06.

Per curiam.


Submitted June 3, 2008

Before Judges Fuentes and Chambers.

Plaintiff appeals from the order of September 20, 2007, denying her motion for reconsideration which sought to reinstate her complaint. The complaint had been dismissed pursuant to Rule 1:13-7, for failure to serve defendants. Since defendants had been served by the time the motion was made, and no prejudice had been shown to them and indeed they did not oppose the application, the case should have been reinstated.

This lawsuit arises out of a motor vehicle accident that took place on August 22, 2004. The complaint was filed on August 9, 2006. Since neither defendant was served within four months of that date, the court sent plaintiff a dismissal notice pursuant to Rule 1:13-7(a). When defendants were still not served within sixty days of the date of the notice, the court dismissed the case without prejudice on March 2, 2007, in accordance with Rule 1:13-7(a).

The record indicates that plaintiff had made efforts at service prior to the dismissal, but service was not successful until after the case had been dismissed. Guaranteed Subpoena Service, Inc., was unable to serve defendant Nagib Abdelmessih on August 29, 2006, at the address listed in the police report. A postal inquiry received on September 28, 2006, indicated that the post office had no change of address on file for this defendant. On June 20, 2007, this defendant was successfully served by Guarantee Subpoena Service, Inc. Service on co-defendant Lauro Delgado was unsuccessful at the address listed for him in the police report. However, a Westlaw People Search revealed another address for him, and he was successfully served at that address on July 3, 2007. Plaintiff presents no explanation for the delay in service for the period from October 2006, to the summer of 2007, when both defendants were finally served.

Once the defendants were served, plaintiff moved to reinstate the complaint. That motion was denied by order dated August 3, 2007, and plaintiff's motion for reconsideration was denied by order September 20, 2007. We are advised that defendants did not oppose the motions below, and defendants have submitted no papers in opposition to this appeal.

A dismissal under Rule 1:13-7 is without prejudice. The Rule is "an administrative one 'designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion.'" Rivera v. Atl. Coast Rehab. & Health Care Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999) (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989)). Since the dismissal is without prejudice, implicit in the Rule itself is the right of reinstatement. Ibid. "[R]einstatement 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. While reinstatement may be inappropriate where defendants can show prejudice by the delay in service, see id. at 346-47, those circumstances are not present here.



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