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Boone v. Ortiz

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 17, 2009

ANTHONY BOONE, PLAINTIFF-APPELLANT,
v.
ALFARO ORTIZ, OFFICER SORRELL, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3617-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 28, 2009

Before Judges Rodríguez and Waugh.

Plaintiff appeals from the dismissal without prejudice of his personal injury action on procedural grounds. We affirm.

In October 2006, plaintiff, who is proceeding pro se, filed a complaint against two corrections officers, alleging that he had been sexually harassed. Boone served the defendants by mail on September 28, 2007. The complaint was dismissed on September 29, 2007, for lack of prosecution pursuant to Rule 1:13-7. Boone did not move to reinstate the complaint, as permitted by that rule.

Defendants, who were not aware of the prior dismissal, moved to dismiss pursuant to Rule 4:6-2(b) and (c). The summons used by plaintiff was deficient in a number of technical ways, including lack of signature and failure to include information concerning legal services and clerks offices as required by Rule 4:4-2. The thrust of defendants' motion, however, was that the summons misstated the time to answer. While defendants were allowed thirty-five days to answer pursuant to Rule 4:6-1(a), defendant's summons stated they had to answer within twenty days. In Bridgewater Leasing Corp. v. Wollman, 94 N.J. Super. 28, 35-36 (App. Div. 1967), we noted that compliance with Rule 4:4-2 was jurisdictional. Defendants' motion was granted on January 2, 2008, again without prejudice.

Although the dismissals were for procedural reasons, they were nevertheless correct. Because plaintiff did not effectuate service and file proof of service in a timely manner, his complaint was properly dismissed without prejudice for failure to prosecute. And, because his summons misstated the time within which the defendants were required to answer, the trial court lacked personal jurisdiction and the complaint was properly dismissed without prejudice for that reason. We see no error.

Even though plaintiff is acting pro se, he is expected to comply with the requirements of the Rules of Court. See Rosenblum v. Borough of Closter, 285 N.J. Super. 230, 241-42 (App. Div. 1995); Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989). This is not a case, such as Tabron v. Grace, 6 F. 3d 147, 156 (3rd Cir. 1993), cited by plaintiff, in which there were complicated legal issues involved. In addition, as already noted, both of the dismissals were without prejudice to reinstatement in the event plaintiff corrected the deficiencies. Consequently, we affirm the dismissals of plaintiff's complaint without prejudice.

Affirmed.

20090217

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