On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3287-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2008
Before Judges Winkelstein and Gilroy.
Plaintiff Ken Green appeals from the February 13, 2008 order of the Law Division that: 1) denied his motion seeking to reinstate his complaint, pursuant to Rule 1:13-7(a); and 2) dismissed the complaint with prejudice as to certain defendants. For reasons that follow, we reverse.
This matter has a tortious procedural history. Plaintiff is a State Deputy Attorney General. On December 12, 2005, plaintiff filed a complaint against the State and the Department of Law and Public Safety (collectively, the State defendants), alleging race discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and in violation of the Equal Protection Clause of the Fourteenth Amendment, citing 42 U.S.C.A. § 1981 and 42 U.S.C.A. § 1983. Also named in the complaint were Nancy Kaplen, Acting Director of the Division of Law; Kathryn Renahan, Section Chief of the Employment Litigation Section of the Division of Law; Don E. Catinello (incorrectly designated in the complaint as Donald Catinello), a Deputy Attorney General in the EEO/Affirmative Action Unit in the Office of the Attorney General; and Michele Daitz, James Martin, and Elizabeth Pascal (incorrectly designated in the complaint as Beth Pascal), Deputy Attorneys General, in the Employment Litigation Section of the Division of Law.
On February 10, 2006, plaintiff served the State defendants. On March 13, 2006, the State defendants filed a notice of removal of the action to the United States District Court for the District of New Jersey. On May 4, 2006, the State defendants filed their answer in the Federal District Court. The individual defendants were served in May and June 2006. On July 24, 2006, and August 7, 2006, the individual defendants filed their answers in the Federal District Court.
On January 30, 2007, plaintiff filed a stipulation of dismissal of his federal claim. On February 5, 2007, the Federal District Court entered an order of remand. The Law Division filed the order on February 28, 2007. For reasons that remain unknown, the answers filed by defendants in the Federal District Court were not adopted or otherwise incorporated into the Law Division's docket.
In May 2007, the trial court sent plaintiff's counsel notice that the court intended to dismiss the complaint as to all defendants, pursuant to Rule 1:13-7(a), for failure of plaintiff to effect service of process. On May 22, 2007, Renahan filed a second answer in the Law Division. In mid-June, plaintiff's counsel, after noticing that no defendant, other than Renahan, had filed an answer in the Law Division, copied the answers filed by defendants in the Federal District Court and sent them to the Law Division for filing. The court did not accept the answers because they were not accompanied by the appropriate filing fee. On July 7, 2007, the court dismissed the complaint as to all defendants, except Renahan, for lack of prosecution pursuant to Rule 1:13-7(a).
In the interim, on July 6, 2007, counsel for the State defendants wrote to the trial court advising of the procedural history of the case and requesting that: "(1) a case management conference be scheduled at Your Honor's convenience in July"; and "(2) the discovery end date for this matter be extended by six months, from August 4, 2007 to February 4, 2008." In making the request, counsel stated:
Defendants' counsel believed that once the case was remanded to this [c]court, a new tracking order would be issued and a case management conference scheduled. Instead, it appears that when this matter was remanded, it was treated as if the case had not been pending in federal court for nearly a year. The case docket indicates that the original 450-day tracking order remains in effect, with the discovery end date currently set for August 4, 2007.
Due to the case's circuitous procedural route and resulting delays in the [p]arties' discovery, we do not believe an August 4, 2007 discovery end date is feasible. The parties have not yet completed written discovery and no depositions have occurred to date. Given that there are six individual defendants and many more third-party witnesses with relevant knowledge (most of whom are attorneys with the Division of Law), we anticipate that a significant number of depositions may be necessary and that it will not be possible to complete these depositions within the next four weeks. Accordingly, we request that the discovery end date in this matter be extended by six months, to February 4, 2008.
Also in early July 2007, defendants' counsel became aware that the State court had not adopted their Federal Court answers. Accordingly, counsel attempted to file new answers in the Law Division, but they were rejected, with the court advising that the complaint had been dismissed. At about the same time, plaintiff moved to enter default as to the individual defendants, except Renahan. The court also rejected that request for the same reason.
On or about January 14, 2008, plaintiff moved to reinstate the complaint as to all dismissed defendants, except Daitz and Pascal. Defendants opposed the motion, contending, as they now argue on appeal, that they would suffer prejudice by reinstatement of the complaint. Specifically, defendants asserted that: only two of the six individual defendants remain employed by the State as of the time of the motion; four individual defendants and numerous third-party witnesses, who plaintiff advised he intended to depose, had left the State's employ; it was unclear whether those four defendants and witnesses would ...