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Pinckney v. Peterbilt of Florence

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 31, 2010

ALEXANDER PINCKNEY, PLAINTIFF-APPELLANT,
v.
PETERBILT OF FLORENCE, INC., PETERBILT OF SAVANNAH, INC., FOLEY CAT, INC., PETERBILT OF DUNN, INC., KAREN TRUETT, AND JERRY ELLIS, DEFENDANTS, AND CATERPILLAR, INC., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3356-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 9, 2010

Before Judges Cuff and C.L. Miniman.

Plaintiff Alexander Pinckney appeals from a July 15, 2009, order granting summary judgment to defendant Caterpillar, Inc., and dismissing his complaint as to it. On November 28, 2007, plaintiff filed a complaint in the Superior Court of New Jersey, Law Division, Special Civil Part, in which he named seven defendants: Peterbilt of Florence, Inc.; Peterbilt of Savannah, Inc.; Foley Cat, Inc.; Peterbilt of Dunn, Inc.; Karen Truett; Jerry Ellis; and respondent Caterpillar, Inc. Plaintiff alleged claims of breach of warranty and manufacturing defect relating to a tractor engine he purchased.

On February 19, 2008, the judge dismissed the complaint as against Peterbilt of Dunn, Peterbilt of Florence, and Peterbilt of Savannah for lack of personal jurisdiction. The judge denied plaintiff's subsequent motion to vacate the dismissal and reinstate the complaint against Peterbilt of Florence on March 4, 2008. Caterpillar answered the complaint on or about March 25, 2008, at which time the only other defendant participating in the litigation was Foley Cat. The judge entered an initial case management order on March 28, 2008.

After Caterpillar was unable to take plaintiff's deposition on three separate occasions, the judge ordered plaintiff on September 15, 2008, to appear for a deposition and produce certain documents. The deposition was ultimately conducted on September 19, 2008. Subsequently, a second case management order was entered on February 3, 2009, in which the judge set forth various schedules, including a schedule for motions and any potential expert reports. He also dismissed the action against the individual defendants, Karen Truett and Jerry Ellis, for lack of prosecution pursuant to Rule 1:13-7 because they were never served with a summons and complaint.

On June 15, 2009, the judge granted Caterpillar's unopposed motion for summary judgment and dismissed all claims against Caterpillar with prejudice. On July 31, 2009, the judge denied plaintiff's subsequent motion to vacate the dismissal and reinstate the complaint. On August 21, 2009, plaintiff filed a motion for leave to appeal, which Caterpillar opposed. We denied the motion on or about October 26, 2009.

On November 2, 2009, the judge entered an order of dismissal after plaintiff settled his claims against Foley Cat for $3500. On November 6, 2009, plaintiff filed a motion for "reconsideration and guidance" with respect to our October 26, 2009, order denying leave to appeal. This motion was denied on or about November 17, 2009. Plaintiff then filed a notice of appeal as of right on December 23, 2009, in which he appealed the orders entered on July 15 and November 2, 2009. Plaintiff filed an amended notice of appeal on February 1, 2010, in which he appealed only the order entered on July 15, 2009.

Although Caterpillar did not file a motion to dismiss this appeal, it argues that plaintiff failed to file his appeal within the forty-five-day period prescribed by Rule 2:4-1. Caterpillar points out that an order of dismissal was entered on November 2, 2009, and the forty-five-day period ended on December 17, 2009. Thus, Caterpillar contends that plaintiff's appeal was out of time when it was filed on December 23, 2009. Caterpillar points to our order dated November 17, 2009, denying plaintiff's motion for reconsideration, wherein we stated: "If appellant has resolved his claims against all other parties and wishes to challenge the dismissal of his claims against Caterpillar, he may file a notice of appeal within forty-five days of November 2, 2009."

Caterpillar also argues that plaintiff has not moved for an extension of time to file his appeal and has not made a showing of good cause as to why an extension should be granted. Caterpillar, therefore, seeks dismissal of the appeal as untimely under Rule 2:4-1(a). Plaintiff has not responded to this argument; rather, he filed an amended notice of appeal twelve days after Caterpillar filed its brief, in which he challenges only the summary judgment entered on July 15, 2009.

Under Rule 2:4-1(a), "[a]ppeals from final judgments of courts . . . shall be taken within 45 days of their entry." In civil actions, this forty-five-day period "starts to run when the judgment or order appealed from is entered pursuant to R. 4:47." Pressler, Current N.J. Court Rules, comment 2 on R. 2:4-1(a) (2010). Extension of the prescribed time period is permissible "only in accordance with the strict limitations of R. 2:4-4." Ibid. Rule 2:4-4(a) permits an extension of time to appeal for a maximum period of thirty days upon motion and "on a showing of good cause and the absence of prejudice."

The time to appeal is also determined in certain situations by Rule 2:4-3, which governs the tolling of time to appeal.

Under Rule 2:4-3(e), the time to appeal is tolled "by the timely filing and service of a motion to the trial court for . . . rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2." However, this rule is not applicable because no Rule 4:49-2 motion was filed with the Law Division after entry of the November 2, 2009, order. The motion for reconsideration of our October 26, 2009, order has no impact on the time to appeal the motion judge's orders. Thus, the time to appeal is measured from that date, and it expired on December 17, 2009.

Needless to say, plaintiff's appeal filed on December 23, 2009, was out of time, but it nonetheless was within the thirty-day period during which we have the discretion to extend the time for appeal pursuant to Rule 2:4-4(a). We may grant such an extension only "on a showing of good cause and the absence of prejudice." R. 2:4-4(a). Previously, "good cause" had been strictly construed as an extraordinary remedy. See In re Appeal of Syby, 66 N.J. Super. 460, 464 (App. Div. 1961). Although we have been more lenient in recent years, there still must be a showing of good cause and the absence of prejudice. See, e.g., Rumana v. County of Passaic, 397 N.J. Super. 157, 172 (App. Div. 2007) (good cause shown). We presume there has been no prejudice because Caterpillar has articulated none. However, plaintiff has advanced no cause at all for his late filing. As a result, we are constrained to dismiss this appeal.

Dismissed.

20100831

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