On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1998-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Koblitz.
Plaintiff Alana Buchanan appeals from the order of the Law Division entered on August 28, 2009, denying her motion to reinstate her complaint alleging malicious prosecution and related claims that was administratively dismissed pursuant to Rule l:13-7(a) on September 22, 2006. After considering plaintiff's arguments in light of the record and applicable law, we affirm.
The arrest that gave rise to plaintiff's complaint occurred on March 4, 2004. Plaintiff was working in a music store where she signed for a package containing illegal drugs, delivered by a law enforcement officer dressed in a FedEx uniform. Law enforcement then confronted her. After plaintiff denied knowledge of the contents of the package and refused to answer questions regarding the store owner, she was arrested and transported to the East Orange Police Department where she was charged with drug-related offenses. She remained in custody for over two days. Almost a year later all charges against her were administratively dismissed.
Her attorney served a notice of tort claim upon the State of New Jersey on May 17, 2005, and filed a complaint on March 3, 2006, against various state employees involved in the criminal investigation as well as their employer, the State of New Jersey. The complaint alleged malicious prosecution, negligent infliction of emotional distress and violations of her federal and state constitutional rights.
Plaintiff's counsel indicates that plaintiff ignored counsel's letters and phone calls from March 15, 2006, until October 5, 2007. Knowing plaintiff suffered from depression, anxiety and sleep difficulty, counsel assumed her client did not wish to pursue the litigation, and therefore ignored the court's notice that the matter would be administratively dismissed under Rule 1:13-7. On October 19, 2007, over a year after the dismissal, plaintiff notified counsel she wished to proceed with the matter.
On July 21, 2008, plaintiff's counsel properly served the State of New Jersey by mailing a copy of the dismissed complaint to the Attorney General. A year later she forwarded the summons and complaint for the three defendants still working for the State to the Attorney General.*fn1
On August 3, 2009, almost three years after the administrative dismissal, counsel filed a motion to reinstate the complaint. Although counsel certifies she mailed the motion to the Attorney General's Office, that office denies receiving the papers and did not file opposition.
Rule 1:13-7(a) sets forth the standard governing motions to reinstate a complaint to which there is not consent. The pertinent part of Rule 1:13-7(a) states:
In multi-defendant actions in which at least one defendant has been properly served, the consent order shall be submitted within 60 days of the order of dismissal, and if not so submitted, a motion for reinstatement shall be required. The motion shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted only on a showing of exceptional circumstances.
The trial court denied the motion. After plaintiff filed a notice of appeal, the trial court, pursuant to Rule 2:5-1(b), submitted a statement of reasons:
The Rule relied upon by the plaintiff affords her no relief. Initially, it should be noted that the Rule addressed reinstatement of complaints where one of the defendants in a multi-defendant case had been "properly served." This is not the factual pattern present in this matter. Additionally, even if the service 22 months after the dismissal of the Complaint were to be deemed to have been "properly served," I find that no exceptional circumstances have been presented to this Court to justify relief. This plaintiff allowed this matter to be dismissed in September 2006 and took no action to reinstate the Complaint until August of 2009. Despite the ...