May 15, 2009
RENE GRIGGS, KAREN ORTIZ, LAURA YOUGH, CHRISTINA BENITEZ, DANIELLE LANG, JOYCE VEREEN, SHAVON RANDOLPH, BETTY CLEMMONS, ALISA LAWRENCE-JOHNSON, JOYCE JOHNSON, PAMELIS SANTIAGO, CORA SMITH, MARIBEL QUINONES, LATISHA WILLIAMS, GLENDA CAMPBELL, LYNETTE SMITH, MARIA MARTINEZ, CINDY DOLPH, PLAINTIFFS-APPELLANTS, AND JACQUELINE ROUNDTREE, KATHLEEN SLOCKBOWER, IRIS MARANT, DIANA ROMAN, JESSICA CORTES, SANDRA SMALLS, SHERRY WALTON, PAULA WILLIAMS, MICHELE PITTARI, JENNIFER RODRIGUEZ, LINDA WARD, TINA CHAMPAGNE, TAMIKA WALKER, PLAINTIFFS,
MARIE FABER, RALPH TRIONFO, ROBERT SCHIFFMAN, CHARLES DEFEO, JOSE VELASQUEZ, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4007-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 15, 2008
Before Judges Skillman, Graves and Grall.
This is an appeal from a final judgment of the Law Division, which dismissed a complaint that challenged the procedures followed by the Civil Division in Passaic County regarding the service of initial and post-judgment process and the completion of returns of service in summary eviction actions.
The plaintiffs are thirty-one persons who were formerly defendants in summary eviction actions in the Passaic Vicinage. The defendants are Marie Faber, who is the Civil Division Manager and formerly Clerk of the Special Civil Part for the Passaic Vicinage, and four Special Civil Part officers for the Passaic Vicinage. The Special Civil Part officers are responsible for service of initial process and of warrants of removal in summary eviction actions. One of Faber's responsibilities is the supervision of these Special Civil Part officers.
Plaintiffs' complaint alleged that the defendant Special Civil Part officers do not attempt personal service or effective substitute service of initial process in summary eviction actions. The complaint alleged that "[t]he position of the [Special] Civil Part staff is that the court officers are not required to attempt personal service of initial process in summary eviction [actions]." In addition, the complaint alleged that the Special Civil Part officers "[n]ever fill in the date or time of service; [n]ever describe the person served . . .; [n]ever describe the premises [where service was made]; [n]ever print their name [on the return of service] and use only an indecipherable signature; [and] [n]ever list the attempts at personal service" on the return of service section of the initial process in summary eviction actions. The complaint also alleged that the Special Civil Part clerical staff who send a copy of the initial process in a summary eviction action to the defendant by regular mail "[n]ever fill in the date or time of mail service; [n]ever sign the return of service; [n]ever list the premises served by mail; [n]ever print their name on the return of service, and never list the means of mail service utilized."
Regarding the post-judgment stage of summary eviction actions, the complaint alleged that the Special Civil Part officers "do not appear to attempt personal service or substituted service of warrants of removal." The complaint further alleged that the Special Civil Part officers "[n]ever fill in the date or time of service; [n]ever describe the person served (since they never attempt personal or substituted service); [n]ever describe the premises; [n]ever list the method of service; [and] use a form with the wrong phone number for legal service" on the return of service section of warrants of removal. In addition, the complaint alleged that the Special Civil Part officers often serve warrants of removal on the third rather than the fourth day following entry of the judgment of possession, and as a result three complete business days are not allowed to expire before issuance of the warrant of removal.
The first count of plaintiffs' complaint sought a judgment ordering Faber to ensure that "defendant court officers submit initial process in summary eviction proceedings with properly completed return of service sections" and that "the court staff reject submissions by the court officers that lack: [t]he date or time of service; and/or [a] description of the person served; and/or [a] description of the premises; and/or [t]he court officer's printed name and legible signature; and [a] description of the attempts at personal service."
The second count of plaintiffs' complaint sought a judgment ordering Faber to "require court staff that mail initial process in summary eviction proceedings complete a return of service form; and/or [o]n the return of service section of initial process in summary eviction proceedings, the Special Civil Part Court staff, who mail out a copy of the initial process in 'nail and mail' service situations must: [f]ill in the date or time of mail service; and [s]ign the return of service; and [l]ist the premises served by mail; and [p]rint their name on the return of service; and [l]ist the means of mail service utilized." In addition, the second count sought judgment ordering Faber to "require that court staff that calculate the issuance date of warrants of removal properly calculate such issuance dates."
The third count of the complaint sought a judgment ordering the defendant Special Civil Part officers to "submit proof of service that includes: [t]he date or time of service; [a] description of the person served; [a] description of the premises; [t]he court officer's printed name and legible signature, and [a] description of the attempts at personal service." In addition, count three sought to enjoin the Special Civil Part officers "from continuing the practice of failing to complete the return of service section of initial process in summary eviction proceedings."
The fourth count of the complaint sought a judgment enjoining the Special Civil Part officers "from continuing the practice of only attempting 'nail and mail' service or mail only service in summary eviction proceedings; and/or . . . from continuing the practice of posting process on the outside of multiple dwelling buildings." This count also sought a declaratory judgment that the Special Civil Part "lacks jurisdiction over the person where[:] 1) there is only mail service, 2) there is only posting on the door of the premises, 3) there is only posting on the outside of the multiple dwelling building and appropriate mail service, 4) there is no attempt at personal service, 5) there is no attempt at substituted service, 6) there is only one attempt at personal service, 7) the mailing of process is done less than 13 days before the return date of the complaint, or 8) posting or personal service or substituted service is done less than ten days before the return date of the complaint."
The fifth count sought a judgment requiring the Special Civil Part officers to "file warrants of removal in summary eviction proceedings with completed return of service sections." This count also sought a declaration that the Special Civil Part officers' "actions be deemed inconsistent with their job responsibilities, inconsistent with the court warrant of removal form and violative of plaintiffs' due process rights."
Plaintiffs' complaint, which was filed in Passaic County, was subsequently transferred to Bergen County, apparently because Faber and the other defendants are subject to the supervision of the Assignment Judge, Presiding Civil Judge and Trial Court Administrator for the Passaic Vicinage.
Plaintiffs conducted extensive discovery regarding the allegations of their complaint, which included depositions of the four defendant Special Civil Part officers, Faber and other court administrators who work under Faber including Glenn DeBlasio, the Assistant Civil Division Manager for the Special Civil Part in the Passaic Vicinage, and Joyce Bolton, the team leader for landlord/tenant matters. Those depositions consume more than 500 pages of the substantial record before us on this appeal.
After the completion of discovery, plaintiffs and Faber filed cross-motions for summary judgment. In support of her motion, Faber submitted a certification which indicated that she, the Presiding Judge for the Civil Division, the Judge assigned to hear landlord/tenant cases and various court administrators had met with the Legal Services' attorney representing plaintiffs before the filing of this action to discuss his concerns and that certain changes in the procedures relating to service of process and return of service in summary eviction actions were made after that meeting:
In November of 2005, plaintiffs' counsel, John Bart, sent correspondence to me raising concerns regarding service of process in landlord/tenant matters. . . . .
Plaintiffs' counsel alleged that there had been an increase in the frequency of tenants not receiving the minimum ten days notice of the pendency of summary eviction proceedings.
I consulted with my Team Leader for landlord/tenant and she subsequently arranged for Mr. Bart to meet with the Presiding Judge of the Civil Division, the Honorable Thomas Brogan, J.S.C., the Landlord Tenant Judge, the Honorable George Wenzel, J.S.C[.], the Team Leader of the Landlord/Tenant Unit, Joyce Bolton, Norma Lisenby, then the Assistant Civil Division Manager for Special Civil, and myself.
This meeting took place on January 26, 2006. At this meeting, we discussed the matters raised in Mr. Bart's November 23, 2005 letter as well as several other matters he raised. Specifically, the following matters were discussed:
a. Plaintiffs' counsel expressed his concern that tenants were not receiving mailed service of the initial summons and complaint a full ten days before the scheduled disposition date. To accommodate this concern, it was agreed that the scheduling of landlord/tenant matters would be readjusted so that the complaints would be mailed out at least 13 days before the scheduled disposition date to allow a full 3 days for the mailing;
b. Likewise, I agreed to readjust the policy for providing the summonses and complaints to court officers at least 13 days prior to the scheduled disposition date to ensure that the court officers could effect personal service or posting of the summons/complaint at least 10 days prior to the scheduled disposition date;
c. I also agreed to provide the court officers with stamp pads for their signature so that their identity could be more easily ascertained by anyone who reviewed their return of service;
d. During this meeting, Mr. Bart and I also reviewed certain returns of service by court officers and addressed the detail of information that would be provided. In general, it was agreed that a legible signature by the court officer, along with a date and a notation of where the summons/complaint was posted, i.e., on a front door of a multi-dwelling unit, was sufficient, and
e. With the consent of the Assignment Judge, I invited Mr. Bart to become a member of the Special Civil Part Court Officer's Advisory Committee. . . . .
In accordance with the decisions reached at the January 26, 2006 meeting, the scheduling and calendaring of landlord/tenant matters was adjusted so that summonses and complaints were mailed out and given to the court officers at least 13 days before the scheduled disposition date.
In addition, stamps and stamp pads were ordered for each court officer so that they could stamp their signature and print the spelling of their names on the returns of service. In addition, at my direction, my staff requested that the court officer specify whether they were posting or personally serving the summons and complaint, and if posted, to provide more detail with respect to where it was posted. . . . .
As a result of the combined efforts of the court officers and my staff, the information now placed on a return of service is much more detailed than before when the officers used only their shorthand of initials and the date served to indicate posting of summonses and complaints.
The cross-motions for summary judgment were heard by Judge Harris, who issued a comprehensive oral opinion that rejected all of plaintiffs' challenges to the procedures followed by the Civil Division in Passaic County relating to the service of initial and post-judgment process and the completion of returns of service in summary eviction actions and dismissed plaintiffs' complaint. He concluded that under Rule 6:2-3(b), which governs service of process in landlord/tenant actions, there is no requirement that the Special Civil Part staff who serve process by ordinary mail file a proof of service. In reaching this conclusion, Judge Harris relied in part on the absence of such a requirement in Appendix XI-B of the Rules of Court, which prescribes the form for use in a "Tenancy Complaint, Summons and Return of Service." He also observed that "if the plaintiffs feel strong[ly] enough about" the need for proof of service of process served by mail "they can and should bring it to the attention [of] the rules committee, the Supreme Court directly, and then that body will decide what is necessary or appropriate."
Judge Harris also rejected plaintiffs' arguments that the Special Civil Part officers must make four attempts at personal service in a summary eviction action, and that if those efforts are unsuccessful, post the complaint and summons on the individual apartment door of the defendant tenant. Regarding the efforts that a Special Civil Part officer must make to effectuate personal service, Judge Harris stated:
I do not find that any directive promulgated by the Administrative Office of the Court[s] is specific to landlord/tenant and requires anything more than reasonable attempts at personal service. In other words, any directive that requires two, three, four attempts at service, as plaintiffs claim there is a directive, is not apposite to the sui generis -- the unique, swift, and certain, if jurisdiction attaches, practice in the landlord/tenant mode of the Special Civil Part.
Regarding service by posting when personal service cannot be effectuated, Judge Harris relied on the part of N.J.S.A. 2A:18-54, which provides that when personal service cannot be made upon a defendant, the person making service "may post or affix a copy of the same upon the door or other conspicuous part of such premises." (Emphasis added). He concluded that "[t]he conspicuous part of the premises concept . . . found in the statute, is fully elastic enough to embrace the practice of the defendant Special Civil Part officers, and does not dilute or erode the language of the rule that requires affixation on the door, if access is obtained."
Judge Harris also pointed out that:
[I]n any given case, the tenant defendant may test the adequacy and reasonableness of the efforts made by the process server under the lens of the totality of the circumstances.
This is an analyses that is particularly inappropriate to be made on an aggregate basis, which is what today's case is. Rather, individualized challenges in particular cases where the trial judge can determine the contours of service is the best procedure and a procedure that may be readily deployed in landlord/tenant cases.
Judge Harris reached a similar conclusion regarding plaintiffs' arguments as to the inadequacy of the Special Civil Part officer's returns of service:
[T]he completed forms of proof of service, must be fulsome enough to provide adequate information to test jurisdiction. It is not enough, as the plaintiff[s] have attempted, to demonstrate anecdotal evidence about insufficient completion of forms. The evidence presented, viewed in the light generously and indulgently to plaintiffs, is unconvincing and unpersuasive that global oversight, meaning by me, is necessary.
In individual cases, judges, not judiciary staff in the civil division manager's office, will decide whether a particular proof of service stands the test of reasonableness and completeness, both under the lens of the rules of court, any applicable directives, and, of course, the due process clause.
Regarding service of warrants of removal, Judge Harris concluded that Rule 6:7-1(c) and N.J.S.A. 2A:42-10.16 permit execution of the warrant three days after personal service, which includes all of the usual modes of service related to the person and the premises to be removed.
That includes on the person or persons themselves, on persons occupying the premises. That includes posting on the premises that is affected by the warrant of removal.
Judge Harris also concluded that plaintiffs had not presented any substantial evidence that the Special Civil Part officers were not properly performing their responsibilities regarding the service of warrants of removal:
I find little convincing evidence of abuses in the process. I see little evidence of any need for a reform, or anything else that would move the equitable arm of the Court toward a mandatory injunction, compelling a different mode of operation in the practice of service of warrants of removal, including the manner and means of effectuating the returns of service[.]
Based on these conclusions, Judge Harris dismissed plaintiffs' complaint.
On appeal plaintiffs present the following arguments:
I. The Plaintiffs Are Entitled to Summary Judgment Against Defendant Court Officers for Their Failure to Serve and Attempt to Serve Initial Process as Required by Law.
II. The Plaintiffs Are Entitled to Summary Judgment Against Defendant Court Officers for Their Failure to Serve and Attempt to Serve Warrants of Removal as Required by Law.
III. The Plaintiffs Are Entitled to Summary Judgment Against Defendant Court Officers for Their Failure to Properly and Fully Complete Returns of Service on Initial Process.
IV. The Plaintiffs Are Entitled to Summary Judgment Against Defendant Court Officers for Their Failure to Properly and Fully Complete and File Returns of Service on Warrants of Removal.
V. The Plaintiffs Are Entitled to Summary Judgment Against Defendant Faber For Failure of Her Staff to Complete Returns of Service Where They Are Responsible For Mail Service of Tenancy Summonses and Complaints.
We reject these arguments and affirm the dismissal of plaintiffs' complaint substantially for the reasons set forth in Judge Harris' oral opinion. We add the following supplemental comments.
In concluding that the methods of service of process provided under Rule 6:2-3(b) satisfy the requirements of the Due Process Clause, we emphasize that Rule 6:2-3(b) requires both service by ordinary mail and also either personal service or service by affixing a copy of the summons and complaint on the door of the subject premises. These dual forms of service must be considered in combination rather than separately. See Greene v. Lindsey, 456 U.S. 444, 454-56, 102 S.Ct. 1874, 1880-81, 72 L.Ed. 2d 249, 258-59 (1982).
To satisfy due process requirements, process must be served by a method or methods that give "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." O'Connor v. Altus, 67 N.J. 106, 126 (1975) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950)). Our courts have recognized that service of process solely by mail may satisfy this standard under some circumstances. See, e.g., First Resolution Inv. Corp. v. Seker, 171 N.J. 502, 514 (2002); New Century Fin. Servs., Inc. v. Nason, 367 N.J. Super. 17, 25-27 (App. Div. 2004); N.J. Dist. Court Ass'n, Inc. v. N.J. Supreme Court, 205 N.J. Super. 582, 588-90 (Law Div. 1985), aff'd o.b., 208 N.J. Super. 527 (App. Div.), certif. denied, 104 N.J. 386 (1986), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed. 2d 146 (1987).
There is no need for us to consider whether service solely by mail would satisfy due process requirements in a summary eviction action because Rule 6:2-3(b) requires this form of service to be supplemented by either personal service or posting on the door of the subject premises. By the same token, the alleged constitutional inadequacy of posting in cases where a Special Civil Part officer is unable to gain access to a tenant's individual apartment and therefore posts the summons and complaint on a mailbox or outside door must be evaluated in light of the fact that service is also made by ordinary mail.
We hold, substantially for the reasons stated by Judge Harris, that these dual forms of service satisfy due process requirements.
We emphasize, however, that the measure of the performance of the duties of a Special Civil Part officer in serving process should not be simply the constitutional minimum. These officers should take every reasonable step to make personal service upon the defendant in a summary eviction action, and if they are unable to make personal service, to gain access to the door of the defendant's individual apartment to post the summons and complaint. When a Special Civil Part officer fails to serve process either personally or by posting on the door of the defendant's individual apartment, this increases the risk not only that the defendant will be deprived of actual notice of the action but also that any default judgment will be set aside if the defendant alleges that he or she failed to appear due to a failure to receive process. Therefore, the interests of both tenants and landlords are promoted by a form of service that provides assurance that the tenant has actually received the summons and complaint.
In addition, we emphasize that, in the discharge of their managerial responsibilities, defendant Faber and the Trial Court Administrator for Passaic County must take reasonable measures to verify that the Special Civil Part officers are properly performing their duties. The determination of whether individual officers are properly performing their duties is a matter of judicial administration for which these court managers have responsibility under the supervision of the Civil Presiding Judge and Assignment Judge of Passaic County. The adequacy of the performance of duties by individual Special Civil Part officers is not a subject that is suitable for adjudication in this kind of lawsuit.
We also note that to the extent plaintiffs' action seeks a change in the rules of court that currently govern service of process and warrants of removal in summary eviction actions, this is a matter within the purview of the Supreme Court Committee on Special Civil Part Practice. See First Resolution Inv. Corp., supra, 171 N.J. at 517. In fact, that Committee has under consideration proposals for rule changes related to some of the arguments advanced by plaintiffs in this litigation.
Finally, we reiterate Judge Harris' observation that if an individual plaintiff claims in a future summary eviction action that initial process or a warrant for removal has not been served in conformity with due process requirements or the applicable rules of court, this contention may be raised in support of a motion to vacate any judgment for possession or order of eviction that may be entered.
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