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Conklin v. Loggy Bayou Enterprises

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 24, 2010

DAVE CONKLIN AND CORRINE CONKLIN, PLAINTIFFS-APPELLANTS,
v.
LOGGY BAYOU ENTERPRISES, LLC, ABC DISTRIBUTION, INC., AND DICK'S SPORTING GOODS, INC., DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-713-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: November 10, 2010

Before Judges Cuff and Fasciale.

Plaintiffs, Dave Conklin and Corrine Conklin, appeal from a December 4, 2009 order denying their motion to reinstate their complaint which was administratively dismissed pursuant to Rule 1:13-7. We affirm because plaintiffs failed to demonstrate exceptional circumstances.

On December 8, 2004, Dave Conklin fell and was injured when a hunting stand disengaged from a tree. On December 7, 2006, plaintiffs filed a complaint against the manufacturer of the stand and the retailer. The complaint was administratively dismissed in June 2007. On September 11, 2009, two years and three months after dismissal, plaintiffs served defendants with a copy of the complaint. Plaintiffs filed a motion to reinstate several months later.

Plaintiffs' counsel asserted she did not serve the complaint on defendants because she (1) did not know the names and addresses of the treating doctors and "the corporate defendants;" (2) did not locate a liability expert timely, and when she did, she had no money to pay him; (3) was in the "early stages of establishing [her] own firm as a sole practitioner;" and (4) had unspecified "health problems" in the winter of 2007.

On appeal plaintiffs argue that the motion judge abused his discretion, there is no required time in which to file a motion to reinstate, exceptional circumstances exist, plaintiffs are not at fault, and defendants have not been prejudiced.

We have carefully reviewed the record and the arguments presented by counsel and conclude that the issues presented by plaintiffs are without merit and an opinion would have no precedential value. R. 2:11-3(e)(1)(E).

We add the following brief comments. Plaintiffs sought to restore the complaint almost three years after it was filed, two and one-half years after dismissal, and five years after the accident. Although plaintiffs' attorney recites a litany of excuses, none of the reasons, singly or collectively, satisfy the good cause standard much less the exceptional circumstances standard.

Affirmed.

20101124

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