May 21, 2010
CHARLES IVES, PLAINTIFF-APPELLANT,
HECTOR CONCERTO RIVERA AND THOMAS A. CANELO, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2884-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 28, 2010
Before Judges Cuff and Payne.
Plaintiff appeals from an order denying his application to restore a dismissed complaint and from the order denying his motion for reconsideration. We affirm.
Plaintiff Charles Ives was involved in an automobile accident on June 10, 2005. Defendant Hector Concerto Rivera was the operator of the car that allegedly struck the car driven by plaintiff. In his complaint filed on June 20, 2007, plaintiff alleged that Rivera was acting within the scope of his employment as an agent of defendant Thomas Canelo. On October 15, 2007, plaintiff requested entry of default against both defendants; and the court entered an order of default on October 15, 2007.
On April 19, 2008, the complaint was dismissed without prejudice for lack of prosecution pursuant to Rule 1:13-7(a) and -7(b)(4) (plaintiff had not moved to enter a default judgment within six months of entry of default). On April 17, 2009, plaintiff moved to reinstate the complaint. In his motion, plaintiff provided no reason for the delay and no proof of service of the motion on the defaulting parties. Judge Bariso denied the motion because plaintiff provided no explanation for the delay, and plaintiff was required to show exceptional circumstances. The judge also noted that plaintiff had not served the defaulting parties.
Plaintiff filed a motion for reconsideration on June 4, 2009. Counsel argued that the exceptional circumstances standard did not apply to his case, there was a presumption of good cause because he filed his motion within one year of dismissal, and no rule expressly requires service on the defaulting parties. Judge Bariso recognized that he should not have applied the exceptional circumstances standard but adhered to his prior ruling that the defaulting parties should have been served with the motion to restore the complaint. The judge said:
In looking at the application for reconsideration, the Court agrees with plaintiff's counsel regarding the standard to be applied; i.e., good cause versus exceptional circumstances and reconsiders that as a basis for the denial and in the --and finds that plaintiff's counsel is correct that the appropriate standard would be good cause.
Plaintiff then takes the position that since it's within one year of the dismissal, I should have simply allowed it, because within one year it's presumed to be good cause. That's a literally -- literal reading of the GREAT GORGE*fn1 case, but even given plaintiff the benefit of the doubt, that it was done within one year, the Court is concerned that it -- of the return date of the motion was more than one year.
But more important, regarding the issue of service, while plaintiff may be correct in regards to the exact language of Rule 1 5 1, that has to also be read in conjunction with what notice is required. And Rule 4:43-1 requires that a party seeking default, six months after the actual default, must serve a notice of motion to enter default on a defendant.
Plaintiff, however, states, there's no legal requirement to say -- to serve a motion to reinstate default, and the Court finds that to be somewhat contradictory. If the rules require that in order to enter default it must be done within six months or by motion, it would seem to me that the same standard should apply to the re-entry of default for a dismissed action.
And because this action was dismissed in April, it, certainly, seems clear to me that plaintiff should serve a motion to reinstate the default in the same manner that you would serve a motion to enter default, that the defendants are entitled to notice.
Additionally, since they have not been notified of the motion, there is no way for the defendants to express their position and, therefore, no way this Court can make a determination as to whether there's any prejudice to the defendants, since plaintiff has not provided any information as to whether the defendants will be prejudiced.
The applicable standard for this motion to restore is good cause.*fn2 There may be a presumption of good cause, Great Gorge, supra, 353 N.J. Super. at 485-86, but plaintiff should still inform the court the reason for the protracted period of inaction. Here, plaintiff addressed the reason for inaction for the first time in support of his motion for reconsideration and provides no reason other than "the motion was filed when on review it was detected that the matter remained dismissed."
This statement does not address why the complaint was dismissed in the first instance after six months of inactivity and another twelve months elapsed between dismissal and the first motion to restore the complaint. Good cause should address the reason for the dismissal and provide some assurance that restoration will result in prosecution of the matter. Plaintiff has not done so in this case. The absence of any explanation for the inaction is sufficient reason to deny restoration of this complaint. Judge Bariso sets forth strong reasons to require service on defaulting parties of a motion to restore a complaint following entry of default, dismissal of the complaint for lack of prosecution, and a prolonged lapse of time between dismissal and the motion to restore the complaint. As noted by the judge in his oral opinion, Rule 4:43-1 requires service on the defaulting party of a request to enter default judgment siX months following entry of default. Presumably, plaintiff would pursue a default judgment once the complaint was restored. Under these circumstances, we discern little, if any, burden on plaintiff to require service of the motion to restore the complaint on defendants. We, therefore, affirm the May 15, 2009 and June 26, 2009 orders denying plaintiff's motion to restore the complaint and his motion for reconsideration substantially for the reasons expressed by Judge Bariso in his June 26, 2009 oral opinion. We also refer the issue of service on defaulting parties of a motion to restore a complaint dismissed for lack of prosecution following entry of default to the Supreme Court Civil Practice Committee for its consideration.