April 13, 2009
K.W. RICE, SR., PLAINTIFF-APPELLANT,
DAN CARACCIO, CHRISTOPHER MCMANEE, CARLYLE THOMPSON, ROB ALMEIDA, AND JOSEPH WOOD, DEFENDANTS, AND WASTE MANAGEMENT, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division - Civil Part, Mercer County, Docket No. L-3135-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 25, 2009
Before Judges Axelrad and Messano.
Plaintiff, K.W. Rice, Sr., appeals from an order denying his motion to reinstate his administratively dismissed complaint and file an amended complaint to add causes of action and additional party defendants. He argues the motion judge abused his discretion in concluding he did not demonstrate "good cause" in accordance with Rule 1:13-7(a). We are not persuaded by plaintiff's argument and affirm.
The record presented by plaintiff is spotty. We do not know whether that is by inadvertence or design. On November 20, 2006, plaintiff filed a pro se complaint against his employer, Waste Management, Inc., Dan Caraccio, its District Manager, and Larry Faschan, its Human Resources Director, seeking damages resulting from wrongful discharge and public humiliation resulting from a November 24, 2004 meeting with Caraccio.*fn1
Plaintiff certifies he "served the defendants by certified mail, but the defendants did not respond" but there is no proof of that in the record other than a notation on the Automated Case Management System Document List (ACMS) indicating that a "PRF SERV" was filed by plaintiff on April 25, 2007. Regardless, it does not appear that plaintiff made proper personal service on defendants, R. 4:4-4, nor took any steps in response to the court's sixty-day notice of impending dismissal without prejudice,*fn2 R. 1:13-7(a), (b), (c), because, according to the ACMS, reflected as two notations of "CRT INIT TO DSM" on June 16, 2007, plaintiff's complaint was administratively dismissed by the court for lack of prosecution.
According to the representation in plaintiff's appellate counsel's brief, he assisted plaintiff in preparing and having the complaint personally served on Caraccio in November 2007. The ACMS reflects that some type of certification, presumably regarding the individual service, was filed on November 27, 2007. The ACMS further reflects another entry noting "CRT INIT TO DSM" on December l, 2007. Plaintiff has not supplied copies of any of the administrative dismissal notices.
It was not until July 3, 2008 that counsel filed a motion to restore the case to the active trial list and permit plaintiff to file an amended complaint with new causes of action and join additional defendants. The amended complaint alleged that plaintiff, an African American, was a shop steward at defendant's facility; on or about November 24, 2004, he and Caraccio met regarding Union business, after which plaintiff filed a criminal complaint against Caraccio; and following a strike in January 2005 that resulted in some violence, plaintiff was fired. Moreover, four municipal court criminal charges were filed against plaintiff, of which two were dismissed and two resulted in acquittals, the last acquittal occurring on July 18, 2007. Plaintiff asserted causes of action for false and malicious prosecution,*fn3 conspiracy to commit tort, and racial discrimination hostile workplace under the Law Against Discrimination.
In support of the motion to reinstate, plaintiff's counsel certified that plaintiff filed a pro se complaint against Waste Management and Caraccio and attempted service by mail; subsequently Caraccio was personally served; defendants did not answer the complaint; no pretrial conference, calendar call or trial date was scheduled; and the complaint was dismissed without prejudice. Waste Management opposed the motion, arguing that plaintiff failed to assert facts essential to evaluating the merits of the application, such as an explanation of why the matter was dismissed, why it lay dormant for so long, what efforts he took to prosecute the case, or even the date the complaint was dismissed.*fn4 Waste Management submitted that plaintiff failed to establish that "good cause" existed warranting reinstatement of his complaint as required by Rule 1:13-7(a), because it appeared he was at fault for not properly serving the complaint and for not addressing the court notices that were sent to him, resulting in the administrative dismissal. Moreover, for a period of time following the administrative dismissal, it appears that plaintiff chose to abandon the case. Waste Management suggested that plaintiff made a tactical decision to pursue a grievance through the National Labor Relations Board (NLRB) regarding termination of his employment, and only after unsuccessfully exhausting his remedies before the NLRB on June 27, 2008 did he then seek to resurrect claims that he had abandoned in the state court. Thus, Waste Management submitted that plaintiff's motives were based on strategy and not neglect. Waste Management further asserted that, regarding the motion to amend the complaint, plaintiff made no attempt to explain why his motion satisfied Rules 4:9-2 and 4:9-3 or how the causes of action in the new complaint related to those already pled.
Plaintiff filed a responding affidavit, claiming he "did not know what actions to take to move [his] case, and was told [he] should hire an attorney to get the case on track[,]" and "finally was able to find an attorney who was willing to take [his] case, properly plead [his] claims, and serve defendants." Plaintiff denied his actions were tactical and claimed he did not have "any assistance in determining [his] legal course of action." His counsel filed a brief arguing that justice required reinstatement of the complaint based on plaintiff's unsuccessful attempt to proceed pro se and his subsequent retention of counsel. See Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257, 262 (App. Div. 2007) (holding that "the right to reinstatement [under Rule 1:13-7(a)] 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.").
The court denied plaintiff's motion, finding "[t]he simple fact that an attorney was hired does not provide good cause in and of itself"; moreover, Waste Management would be prejudiced by the reinstatement of the amended claim "due to the fact that this case is so old and no discovery has been exchanged relating to the incident that happened in 2005." The court entered the August 13, 2008 order that plaintiff has appealed.
On appeal, plaintiff makes the same arguments that he made to the motion judge. He emphasizes that his inaction stems from ignorance of the court rules and procedures regarding service of process and administrative dismissals but that it does not equate to fault, and that he has cured the problem by retaining counsel who promptly served the defendant, not previously served. See, Weber, supra, 397 N.J. Super. at 264 (Where a complaint has been dismissed for failure of service, "the purpose of Rule l:13-7(a) is advanced where plaintiff successfully serves the defendant before filing a motion to reinstate the complaint."). He urges that the delay between the dismissal and his motion to restore is only slightly more than twelve months, as compared to the seventeen-month interval we permitted in Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007), noting that motions to reinstate are to be viewed with "great liberality" and there is a "'general disinclination to invoke the ultimate sanction of dismissal where the statute of limitations has run,'" id. at 197-98 (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 268-69 (App. Div. 1989)).
We discern no abuse of discretion by the motion judge based on the record presented. In Ghandi, we reinstated the plaintiff's complaint to the active trial list only after finding that the delay in moving to restore the case was due to "transgressions of plaintiff's counsel, through no fault of plaintiff [and] [b]ecause defendants had not objected to reinstatement . . . ." 390 N.J. Super. at l97. Even viewing motions to reinstate with great liberality, "good cause" under Rule 1:13-7(a) must require more than merely a general statement that the plaintiff is pro se and is ignorant of the procedure but has thereafter cured the defect by retaining counsel. As Waste Management stated, plaintiff provided no specific facts or documentation regarding his attempt to serve either defendant, nor did he provide copies of any notices from or his responses to the court, so it is reasonable to assume he made no effort to advance his case. Accordingly, presumably after the sixty-day notice and further inaction or noncompliance, R. 1:13-7, the complaint was administratively dismissed on June l6, 2007.
Moreover, plaintiff admits he consulted present counsel after receiving notice of the impending dismissal of his complaint against Caraccio, and counsel assisted him in having Caraccio personally served in November 2007 and in filing a certification with the court. Plaintiff does not certify that he was under a misconception that the complaint was reinstated at that time. Plaintiff, however, provides no explanation for the additional eight-month delay in filing the motion to reinstate his complaint, as amended, and to join the additional defendants. Although plaintiff may simultaneously pursue his grievance procedures at the NLRB and his judicial remedies, the timing of his motion to reinstate, combined with the lack of explanation for the delay, suggests plaintiff made a tactical decision not to advance this complaint, further undermining his claim of good cause. Under the circumstances, Waste Management should not have to incur the additional expense to defend this complaint at such a late date.