On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10546-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011 Decided Before Judges Fuentes and Ashrafi.
Plaintiff Roxanne Gallemore appeals from an order of the Law Division denying reinstatement of her wrongful death complaint following dismissal under Rule 1:13-7(a). Plaintiff's motion to reinstate was filed after more than two years of inactivity in the case. Although the abuse of discretion standard ordinarily applies to a trial court's ruling under Rule 1:13-7(a), Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007), we are constrained to reverse and remand for further development of the record pertaining to the administrative dismissal.
Plaintiff's complaint arose from the tragic death of her nineteen-year-old son, Lamonte Gallemore, while in the custody of Essex County authorities. According to a police report, Lamonte was arrested by Irvington police on October 12, 2003, on charges of robbery, assault, and resisting arrest. One week later, Essex County corrections authorities transferred him to a unit of the old Essex County Jail Annex in Caldwell where gang members where housed. According to plaintiff, her son was not involved with a gang. Within hours of his entry into the jail unit, Lamonte was attacked by gang members and brutally beaten in a shower stall, apparently for no reason other than jailhouse gang recruitment activity. He died on October 19, 2003, of severe blunt force trauma to his upper body.
Plaintiff originally filed a complaint in October 2004, alleging negligence of county authorities and civil rights violations for placing her son in a gang unit and for failing to protect his safety. Defendants filed an answer to the complaint, and plaintiff pursued discovery of county records. Because the criminal investigation and prosecution of the assailants were in progress, plaintiff's attorney was unable to obtain all the document discovery he sought to support the civil complaint. Also, county counsel indicated a desire to negotiate a potential settlement of plaintiff's claims but needed information that was then unavailable. As a result, plaintiff's attorney and assistant county counsel agreed to a voluntary dismissal of plaintiff's complaint without prejudice to its reinstatement. A consent order dismissing the original complaint without prejudice was filed on May 5, 2006.
When a settlement could not be reached, plaintiff filed a new ten-count complaint against county corrections authorities on December 26, 2006. The court issued a track assignment notice indicating that the case would have a discovery period of 450 days. Plaintiff's attorney did not serve the new complaint on the defendants but mailed a copy to county counsel on March 13, 2007. At the same time, he served a subpoena upon the Essex County Prosecutor for documents relevant to the case. On March 27, 2007, and July 5, 2007, the Law Division entered orders enforcing the subpoena served upon the Essex County Prosecutor.
Because no answer was timely filed to plaintiff's new complaint, and plaintiff did not file proof of service or request entry of default within four months of filing the new complaint, the court clerk administratively dismissed plaintiff's complaint on July 14, 2007, for failure to prosecute under Rule 1:13-7(a). Apparently unaware of the dismissal, county counsel propounded interrogatories upon plaintiff on October 6, 2007. There is no record of plaintiff responding to the interrogatories.
For the next two years, no recorded activity occurred in the case. A certification of assistant county counsel states that some further efforts were made to settle the case by an attorney other than plaintiff's attorney-of-record, and with the participation of the Reverend Al Sharpton, but no specifics have been provided as to those efforts. Two years after the complaint was dismissed, on July 10, 2009, plaintiff personally filed an application with the county under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for documents related to her son's death. At that time, assistant county counsel determined that plaintiff's civil complaint had been dismissed in July 2007 and directed compliance with plaintiff's OPRA application.
On October 7, 2009, plaintiff filed a motion through counsel to reinstate her complaint. Counsel stated in his certification that he had not received a notice from the court that the case would be or was dismissed under Rule 1:13-7(a). He stated that earlier delay in the case had been caused by his inability to obtain necessary documents while the criminal prosecutions were active, and he now had documents that would allow the expert he had retained to issue a report pertaining to the negligence of corrections authorities in housing the decedent with known, violent gang members.
The Law Division denied plaintiff's unopposed motion to reinstate her complaint by order dated November 5, 2009, stating that the motion was untimely and the expert report referenced had not yet been prepared and served.
Plaintiff then filed a motion for reconsideration. County counsel opposed the motion, contending among other things that years had passed since the incident resulting in the homicide, that the Essex County Jail Annex had closed in 2004, and that knowledgeable administrative personnel had changed since that time. County counsel argued that defendants would be prejudiced if they were required to defend the case some six years after the underlying events.
After hearing argument on the motion for reconsideration, the Law Division found that plaintiff's attorney had provided no excuse for inactivity of more than two years and that defendants were prejudiced by the delay. The court concluded that plaintiff's application to reinstate did not show exceptional circumstances for reinstatement, as required by Rule 1:13-7(a). The court entered an order on January 9, 2010, denying plaintiff's motion for reconsideration, and plaintiff appealed.
Rule 1:13-7(a) states in relevant part: whenever an action has been pending for four months . . . without a required proceeding having been taken therein as hereafter defined in subsection (b), the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice . . . unless, within said period, action specified in subsection (c) is taken. If no such action is taken, the court shall enter an order of dismissal without prejudice as to any named defendant and shall furnish the plaintiff with a copy thereof. After dismissal . . . a motion for reinstatement shall be required. ...