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Bamigbade v. Fang


October 14, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-5500-06.

Per curiam.


Submitted September 13, 2010

Before Judges Sabatino and Alvarez.

This appeal arises from a November 2004 automobile accident where a vehicle owned by Xiaoyan Fang struck a vehicle owned and driven by plaintiff Ladi (O.A.) Bamigbade. Plaintiff seeks to recover property damage to his vehicle and other alleged consequential damages. The accident has spawned two separate lawsuits, in which plaintiff has been self-represented each time. After a trial, the trial court dismissed the first complaint filed against Xiaoyan Fang, and Xiaoyan Fang's insurer, AIU Insurance Company ("AIU"), under Essex County Docket No. DC-3332-05. The court found that defendants in that first lawsuit had no liability because Xiaoyan Fang's vehicle had been reported as stolen a few hours before the accident occurred.

In the present litigation, under Essex County Docket No. DC-5500-06, plaintiff named as defendants "Yujian Liu Fang, Jr.," and AIU, who plaintiff alleges was "Yujian Liu Fang, Jr.'s" insurer. The trial court granted AIU's motion to dismiss the complaint. The court also denied several motions by plaintiff to reconsider or reopen the dismissal of the case. Plaintiff then filed the instant appeal. For the reasons set forth herein, we affirm the trial court's various orders in this case, from which plaintiff has appealed.


Although the procedural history is complicated, the pertinent chronology may be summarized as follows. As noted, this appeal stems from plaintiff's second complaint arising out of the same automobile accident, following a no-cause judgment in the first action. The first complaint, Docket No. DC-3332-05, was tried in the Special Civil Part on June 27, 2005, before Judge Ramona A. Santiago. Judge Santiago heard testimony from plaintiff and from Xiaoyan Fang, and viewed police reports, and storage, towing, and car rental bills, before rendering her decision. During his presentation at that trial, plaintiff agreed that defendant Xiaoyan Fang, a woman, was not the driver he saw at the scene of the accident. He described the driver as "Oriental" and "a very young guy" who was "[a]bout the same age as the defendant's husband." Plaintiff testified that he gave the same description to the police, acknowledging that he "couldn't see [the driver] clearly."

Xiaoyan Fang testified at the trial that she and her husband had been shopping at the Jersey Gardens Mall in Elizabeth with their six-month-old baby, when her car was stolen from the mall parking lot. She testified that she reported the theft to mall security, to the police, to the Division of Motor Vehicles, and to insurance personnel. She described the damage to the vehicle that she observed after it was recovered.

After considering the proofs at trial, Judge Santiago entered judgment for defendants. The judge found "very credible" the testimony of Xiaoyan Fang that her car was stolen, and that it had been reported stolen before the collision with plaintiff's vehicle occurred.

Plaintiff then moved to reinstate his first complaint and to vacate the judgment of dismissal. At an October 7, 2005 hearing on that post-trial motion, plaintiff asserted that he had become aware of a third-party driver of the vehicle, who he alleged had been given permission from Xiaoyan Fang to drive her vehicle. Plaintiff asserted to Judge Santiago that "it wasn't a theft" and that "the car was not stolen, Your Honor. That is what we find newly in evidence." Plaintiff maintained that during his cross-examination of Xiaoyan Fang at trial, she allegedly identified a driver whom she had authorized to drive her vehicle and who had caused the accident. AIU opposed the motion for reinstatement as untimely and without substantive merit. Moreover, AIU's counsel recalled no testimony at the trial about another authorized driver.

Judge Santiago denied plaintiff's motion for reinstatement of the first action. In her ruling, Judge Santiago agreed with AIU that plaintiff's application had been made beyond the twenty-day time period allowed under Rule 4:49-1. Furthermore, the judge listened to the tape recording of the trial, and heard nothing on the tape to substantiate plaintiff's assertion about the alleged driver of the vehicle. Consequently, the court found no miscarriage of justice under Rule 4:49-1.

Plaintiff then filed another motion seeking a new trial of the first action. This motion was heard by Judge Rachel N. Davidson and was denied on December 7, 2005. Plaintiff filed yet another motion for reconsideration, which Judge Davidson denied on February 3, 2006. The judge indicated in that order that: "plaintiff is now advised that further motions that the court finds to be frivolous will result in defendant being granted attorney's fees."

On or about February 6, 2006, plaintiff filed a complaint in the Special Civil Part, Essex County Docket No. DC-5500-06, which is the direct subject of the present appeal. In that second action, plaintiff named as defendants Yujian Liu Fang, Jr., and AIU. Only AIU filed an answer to this second complaint. The other named defendant has not appeared.

Subsequently, AIU filed a motion for summary judgment to dismiss the second action. On May 5, 2006, Judge Davidson heard oral argument and granted AIU's motion. In her ruling, the judge expressly noted that she was "not dismissing [plaintiff's] claim against Yujian Liu Fang[, Jr.]" The court entered an Order of Dismissal on that same date, directing that summary judgment be granted in favor of AIU, and making no reference to Yujian Liu Fang, Jr.

Following the May 5, 2006 dismissal order, plaintiff filed a motion in June 2006, seeking to restore the second lawsuit to the trial list. In his affidavit in support of his moving papers, plaintiff asserted that he had "visited Mr. Yujian Liu Fang,jr [sic] business location addressed at 135-12 Roosevelt Avenue,Flushning, New York [sic], 11354-5314, (Fortune Services) and saw Mr. Yujian Liu Fang[, Jr.,] who was the same party witnessed as the driver of subject vehicle that caused the accident."

Plaintiff also asserted in that same affidavit that "the testimony of the defendant (Mrs Fang Xiaoyan,DC-0332-05) [sic] rendered during the trial proceeding held support the fact that, Mr Yujian Liu Fang,Jr, [sic] was in possession of the subject vehicle on November 20,2004 [sic]."*fn4

On August 11, 2006, Judge Davidson denied plaintiff's motion to restore the second action. The judge also granted AIU's motion for $810.38 in attorney fees "for having to defend this current frivolous motion." Subsequently, on October 25, 2006, the court denied plaintiff's motion for summary judgment and denied plaintiff's motion to stay the sanctions award. However, on April 5, 2007, the court granted plaintiff's motion to vacate the sanctions, finding that the sanctions were not properly imposed pursuant to Rule 1:4-8. The court stated that it would not revisit the summary judgment dismissal, and that plaintiff would need to appeal if he thought the trial court had erred with respect to the dismissal. Thus, in the April 5, 2007 order, the court wrote: "the motion to vacate sanctions is granted; everything else is denied."

Plaintiff filed another reconsideration motion with the trial court, on May 21, 2007, which Judge Davidson denied by order dated July 6, 2007. The court's order contained the following commentary under the heading "Reasons":

The court had some difficulty in understanding plaintiff's arguments.

However, there is nothing in the Rules of Court that allows for a motion to reconsider denial of reconsideration. Having been denied reconsideration on November 3, 2006, the court will not consider another motion on this issue. Plaintiff's recourse is to the Appellate Division.

The court entered another order on October 9, 2007, denying yet another motion filed by plaintiff. Using the form of order submitted by plaintiff, this order was captioned "Order Granting Motion to Renew Default for Judgment," but the court wrote: "[T]he motion is denied. Plaintiff should file an appeal. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 ([Ch.] Div. 1990). ORDERED, that this case is hereby Closed."

Seeking relief from the October 9, 2007 order, on October 29, 2007, plaintiff filed various motions "to reopen and reinstate of Case [sic] for Consideration" and "to Vacate Defaults and for Judgment by Default," with supporting certification, affidavit, and brief with attachments. In that application, plaintiff invoked Rule 4:50-1(d), maintaining that he had a meritorious claim for entry of a default judgment against Yujian Liu Fang, Jr., because "the court overlooked the fact that the defendant identified as Yujian Liu Fang,Jr. [sic] failed to file a written Answer to Complaint," noting that AIU's counsel did not represent Yujian Liu Fang, Jr.

In a subsequent affidavit, notarized on October 12, 2007, Yujian Liu explained that he is the owner and principal of Fortune Insurance Services Company, located at 135-12 Roosevelt Avenue in Flushing, New York, the same address at which plaintiff allegedly saw Yujian Liu Fang, Jr. Yujian Liu stated that his company acts as an agent to write insurance policies, and that the company had prepared the paperwork through which Xiaoyan Fang had obtained her automobile insurance with AIU. Yujian Liu indicated that he had learned from AIU's counsel about plaintiff's second lawsuit, purporting to name and serve defendant Yujian Liu Fang, Jr., at Fortune Services, at 135-12 Roosevelt Avenue in Flushing, New York. According to his sworn affidavit, Yujian Liu has never used the name "Yujian Liu Fang, Jr."; he has no employees by that name; he knows no one by that name; and, a review of his business records shows that the business has never had a client or an insurance applicant by that name. Yujian Liu further denied operating Xiaoyan Fang's vehicle on the date of the accident and he asked the court to have plaintiff refrain from sending any further mail about this matter to Fortune Services.

The trial court denied these further applications from plaintiff as well. Revising plaintiff's proposed form of order to conform with its ruling, the court entered an order on March 3, 2008, stating that "the application is substantially the same as earlier applications" and thus, that plaintiff's motion was denied.

On April 17, 2008, plaintiff filed a notice of appeal from the March 3, 2008 order in the second action.*fn5 In July 2008, plaintiff moved for summary disposition, which this court denied. However, in June 2009, this court entered an order of temporary remand to the trial court "for preparation of a written opinion stating findings of fact and conclusions of law supporting entry of the October 9, 2007, and March 3, 2008 trial court orders."

On that remand, Judge Davidson reviewed at length various items available in the trial court's file.*fn6 After reviewing the case history, Judge Davidson wrote:

As best the court can determine, plaintiff appeals this court's granting summary judgment to AIU and the court's declining to enter default judgment against named defendant Yujian Liu Fang[, Jr.] The court continues to see no reason to disturb its rulings on these issues. Putting aside plaintiff's failure to demonstrate a basis for reconsideration, none of plaintiff's claims succeed on the merits.

As to the first issue, the court sees no reason to set aside its grant of summary judgment to AIU given that the first trial already determined that AIU's insured was not at fault and that the car belonging to AIU's insured was stolen. The court cannot provide more details as to its findings on this issue without transcripts of the trial and of the findings that this court placed on the record.

Judge Davidson then went on to elaborate concerning plaintiff's failure to establish proper service on the individual he claims to be Yujian Liu Fang, Jr.:

As to the second issue, the application to include Yujian Liu Fang[, Jr.,] as a defendant was denied absolutely by Judge Santiago in the earlier matter. There was no basis set forth by plaintiff to re-visit that decision. In addition, the court cannot enter default judgment against a defendant for whom there is no proof that he was ever served. As stated earlier, the court's file does not contain any proofs of service for this case. Generally, in DC matters the summons and complaint are served by regular and certified mail by the court and the court clerk completes the return of service. Rule 6:2-3(d). The language of the rule suggests that the type of service is limited to service within the state of New Jersey. According to plaintiff, named defendant Yujian Liu Fang[, Jr.,] was employed in New York. The Comment to Rule 6:2-3 states that "a defendant may be served at a business address provided the certified mail instructions require delivery to the addressee only and the defendant has actually signed the receipt." Pressler, Current N.J. Court Rules, comment 2 on R. 6:2-3 (2009). As stated earlier, even if the clerk mailed a summons to named defendant Yujian Liu Fang[, Jr.] at his place of employment at Fortune Service in New York, no signed receipt of such service was received by the court.

Plaintiff is unable to demonstrate that Yujian Liu Fang[, Jr.,] was served; there is no proof of personal service and service by mail to a place of business, even if permitted for out-of-state defendants, requires a signed receipt. The notice sent by the clerk to plaintiff (included in Exhibit P) is not proof of service and in the event the clerk is made aware that there has not been proper service it is the clerk's responsibility to vacate any entry of default. If the clerk entered default in error, the clerk must correct the error as required by Rule 6:2-3; the error certainly cannot become the basis of a default judgment. The court cannot provide more details as to its findings on this issue without transcripts of decisions that were placed on the record. [(Emphasis added; footnote omitted).]

Attached to the remand opinion is a photocopy of a card, dated February 15, 2006, mailed from the Essex County Special Civil Part to plaintiff, stating: "A SUMMONS WAS MAILED TO DEFENDANT(S) ON 02-17-06 FOR CASE DC-005500-06. UNLESS OTHERWISE NOTIFIED, THIS CASE WILL DEFAULT ON 03-27-2006."


Although his pro se arguments are at times difficult to decipher, plaintiff essentially contends that his second lawsuit should not have been dismissed, and that the trial court should have allowed him to pursue a cause of action against the supposed person he refers to as Yujian Liu Fang, Jr. AIU, meanwhile, has argued in its brief that the second lawsuit, and the present appeal, were barred under the doctrines of res judicata, collateral estoppel, and entire controversy. AIU further argues that plaintiff failed to file a timely appeal and failed to serve upon it a copy of the notice of appeal.

Plaintiff does not appear to contest the dismissal of AIU from the second lawsuit; rather, plaintiff's focus is upon whether his claims against Yujian Liu Fang, Jr., were properly dismissed. More affirmatively, he contends that he was entitled to have the March 3, 2008 order vacated and a default judgment entered as a matter of law, because Yujian Liu Fang, Jr., failed to timely answer.

Valid service of process is a necessary predicate for obtaining judicial relief against a litigant, particularly by default. See R. 4:4-4; see also R. 6:2-3 (requiring that if, after entry of default, "reason exists to believe that service was not effected, the clerk shall vacate the default"). For the reasons cogently stated in Judge Davidson's written opinion on remand, such valid service was never effected on Yujian Liu Fang, Jr. The record contains no valid proof of service of the summons and second complaint upon Yujian Liu Fang, Jr. The pleadings were apparently mailed, at plaintiff's request, to the business address of Fortune Services in New York; no signed receipt of service upon Yujian Liu Fang, Jr., was returned. An individual defendant served at a business address must actually sign the receipt of the certified mail. Cf. R. 6:2-3(d). No such documentation was generated. Service also was not effective under Rule 4:4-4(c), which allows for optional mail service in certain circumstances, because Yujian Liu Fang, Jr., did not file an answer or enter an appearance in the case. Id.

Moreover, the record supplied to us does not demonstrate, beyond plaintiff's own bare statements, that a person named Yujian Liu Fang, Jr.,*fn7 even exists, much less that he was the person driving Xiaoyan Fang's car on the date of the accident. Plaintiff's assertion that defendant was an AIU insured and could be served at Fortune Services, at 135-12 Roosevelt Avenue in Flushing, New York, is entirely unsupported on this record.*fn8

The trial court was well justified in dismissing the complaint against that defendant.

If plaintiff's assertions as to the driver's identity were correct, he should have been able to get some independent verification as to the whereabouts of Yujian Liu Fang, Jr. Plaintiff then could have arranged for personal service or for service by mail. In the absence of proof of valid service, the Special Civil Part was not required to keep this litigation open in perpetuity. Accordingly, on October 9, 2007, when the trial court ordered that the "case is hereby Closed," plaintiff should have appealed that decision within forty-five days if he believed that he could still maintain an action against Yujian Liu Fang, Jr. See R. 2:4-1(a) (requiring appeals to be filed within forty-five days).

Just as the October 9, 2007 dismissal of the second complaint was justified, the trial court's ensuing denials of reconsideration were also justified. The standards of reconsideration motions are well established:

Reconsideration itself is a matter within the sound discretion of the Court, to be exercised in the interest of justice. It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)) (internal quotations omitted).]

Here, no new and probative evidence or law was ever presented to the trial court that should have caused it to reinstate the present litigation. Despite his repeated efforts to obtain reconsideration, plaintiff never showed that any properly-served individual defendant had failed to answer the second complaint.

Moreover, by the time of the reconsideration motion, the additional information available to the court was adverse to plaintiff; i.e., Yujian Liu's affidavit, which explained why service upon Yujian Liu Fang, Jr., at the Flushing business address was legally improper.

In sum, we are satisfied that the trial court properly dismissed plaintiff's second action, there being no demonstration of valid service upon the alleged driver of the vehicle, and no reason to continue to retain AIU as a co-defendant in the litigation as a putative insurer of that alleged driver.


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