November 10, 2009
AMICA MUTUAL INSURANCE COMPANY A/S/O LI XIAOBIN, PLAINTIFF-RESPONDENT,
EDWARD RAMIREZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-030291-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Wefing and Grall.
Plaintiff Amica Mutual Insurance Company (Amica) commenced this litigation in the Special Civil Part to recover $2197.80 Amica paid to its insured to cover property damage sustained in an accident allegedly caused by a person driving defendant Edward Ramirez's car. A default judgment was entered in favor of Amica on April 15, 2005, vacated by order of August 1, 2008 entered on defendant's motion, and reinstated by order of September 23, 2008 on Amica's motion for reconsideration. Defendant appeals from that order.
Because service was not made in conformity with the Rules of Court and reinstatement of the default judgment was inconsistent with well-established principles requiring courts to treat applications to set aside default judgments indulgently, we vacate the order and remand for further proceedings.
These are the pertinent facts disclosed in the materials submitted on defendant's successful motion to vacate and Amica's successful motion for reconsideration. Amica's insured was involved in an accident at about 8:15 a.m. on October 11, 2001; the insured alleged that the accident was caused by someone driving defendant's car who fled the scene of the accident. Although there is no dispute that the license plate number and vehicle description the insured provided match defendant's car, defendant has competent evidence tending to establish that he was working as a truck driver at the time of the alleged accident and could not have been driving his car.
Process was served by mail sent by the clerk of the court. The postcard the clerk sent to plaintiff's attorney indicates that the summons was mailed to defendant's home address in New York City. There is no other proof relevant to service, and Amica does not claim that it made any inquiry or effort relevant to service of defendant in person or by mail.
Although defendant acknowledges that his address in New York is shown on the postcard mailed by the clerk, he asserts that he did not receive the summons and did not learn about the judgment until October 2007. Defendant's employer was contacted by his insurance carrier and advised that defendant's commercial driver's license had been suspended. Upon learning about the suspension, defendant obtained an abstract of his driving record; it reflected a suspension imposed on April 5, 2007 because of Amica's unsatisfied default judgment.
Without taking any testimony, the trial court declined to believe that defendant did not receive the summons and determined that he had in fact received it. The trial court did not address defendant's claim that service by mail effectuated by the court was not an adequate basis for exercise of personal jurisdiction over a non-resident or his alleged meritorious defense to liability on the claim. Rather, the trial court deemed service adequate, defendant's neglect inexcusable and his proposed meritorious defense immaterial.
It is well-settled that a request to vacate a default judgment is viewed "with great liberality" and "every reasonable ground for indulgence [is given] to the end that a just result is reached." Mancini v. EDS, 132 N.J. 330, 334 (1993) (citing Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)). Moreover, when "'there is at least some doubt as to whether the defendant was in fact served with process,'" there must be "'a more liberal disposition of' the motion." Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 100 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999) (quoting Goldfarb v. Roeger, 54 N.J. Super. 85, 92 (App. Div. 1959)).
Here, defendant's denial of receipt of the summons, his explanation of how he learned about the judgment and his subsequent reasonably prompt attempt to set it aside were sufficient to raise, at a minimum, "some doubt" about the effectiveness of the service by mail. Accordingly, the judge's decision to disbelieve defendant and reinstate the default judgment on the ground that defendant inexcusably neglected to respond to a summons he had in fact received was wholly inconsistent with the principles that require an indulgent view in favor of permitting a decision based on the merits of claims.
Indeed, the trial court's focus on inexcusable neglect was inconsistent with this court's decision in Davis. In Davis we held that when there is reason to doubt actual receipt of notice, as there was here, "the absence of evidence establishing willful disregard of the court's process is an important consideration" the court must take into account in deciding whether relief from a default judgment is required by "exceptional circumstances" and without regard to inexcusable neglect. Davis, supra, 317 N.J. Super. at 100 (discussing Rule 4:50-1(f)). In this case, there was no evidence tending to show willful disregard and the court's exercise of discretion to reinstate the default judgment was mistaken in this circumstance.
Reversal is required for an additional reason. Under the undisputed facts, service was not made in compliance with the Rules of Court. Service effectuated by the court through the mail in accordance with Rule 6:2-3 is permissible "within this State." R. 6:2-3(b). In contrast, service outside of New Jersey must be "made pursuant to the applicable provisions in R. 4:4-4 or R. 4:4-5." R. 6:2-3(b). Rule 4:4-4(b)(1) permits acquisition of personal jurisdiction through service by mail outside of the State only upon submission of an affidavit of diligent inquiry in conformity with the requirements of Rule 4:4-5(c)(2). There is no dispute that plaintiff failed to file the requisite affidavit. Accordingly, service was not accomplished in conformity with the Rules of Court, and, for that reason it was error to reinstate the default judgment. Jameson v. Great Atlantic and Pacific Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004); Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 293-94 (App. Div. 2000).
The order reinstating the default judgment is vacated, and the matter is remanded for further proceedings on the merits.
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