On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8574-09.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Messano.
Plaintiff Glenn B. Slater appeals from the Law Division's order of May 28, 2010 denying his motion for reconsideration. We have considered the arguments plaintiff has raised in light of the record and applicable legal standards. We reverse.
On February 6, 2009, plaintiff filed a pro se complaint in the Law Division in Passaic County against "Captain David Hardin, Individually and as Captain of West Milford Police Department, West Milford Township, Joan Waks, Esq., Individually and Waks & Mecky, a Corporation, Janet Sciorra, Chief James Dykstra of the West Milford Police Department, [the] Passaic County Prosecutor's office & John & Jane Does 1-10." The complaint alleged that on October 1, 2002, Hardin, "while acting under the color of state law . . . abused his power by refusing to follow a court order, refusing to arrest trespassers, and following another court order that had been denied in full." Plaintiff also claimed that Waks "intimidat[ed]" Hardin into committing these acts, West Milford "failed to properly train their officers," Sciorra "illegally pocket[ed] over [$]200,000 . . . in rental income along with trespassing," Dykstra failed "to stop the criminal actions of . . . Hardin," and the prosecutor's office "allow[ed] [and] encourage[ed] . . . Hardin."
Hardin, Dykstra and West Milford (collectively, defendants) answered the compliant on May 26, 2009.*fn1 Thereafter, venue in the case was transferred to Bergen County, however, neither party was apparently aware of this until October 2009 when defendants sought a consensual 60 day extension of discovery. Discovery was extended and eventually a trial date of March 15, 2010 was set.
On February 2, 2010, defendants moved to dismiss the complaint alleging plaintiff's interrogatory answers were inadequate. Plaintiff filed opposition and cross-moved to reopen discovery and compel production of certain documents by defendants.
On March 1, the matter was scheduled for a mandatory, court-ordered settlement conference. Defendants appeared but plaintiff did not. On March 8, the judge entered an order dismissing the complaint without prejudice pursuant to Rule 4:37-2(a).
Plaintiff moved to reinstate the complaint. In his certification, he claimed that he filed a motion to enforce litigant's rights in February in Passaic County.*fn2 Plaintiff further certified that he was unaware the settlement conference "was still . . . to be heard . . . [because] he believed that the motion to enforce litigants [sic] rights . . . would over step the settlement conference." Plaintiff also certified that he was "very confused as no one was informed of the venue change, and no one had motioned for a venue change." Plaintiff offered to pay defense counsel's costs for appearing at the settlement conference.
The appellate record fails to indicate whether the motion was opposed, however, ACMS indicates that no opposition was filed. On April 19, the judge denied plaintiff's motion to reinstate his complaint. A hand-written notation on the order provided: "[S]tatute of limitations has run . . .; see Rivera v. Prudential[,] 104 [N.J.] 32 [(1986)]."
Plaintiff moved for reconsideration and requested oral argument. ACMS indicates that defendants filed no opposition, and the appellate record contains none. Plaintiff reiterated the facts regarding the change of venue and his confusion based upon the pending motion, the March 1 settlement conference, and the trial date shortly thereafter. Plaintiff also noted that the April 19 order, in which the judge indicated the complaint was time-barred, "was the first mention of being out of time that [h]e encountered." Plaintiff argued his claim was "a continuous tort action," and, presumably, not barred by the two-year statute of limitations. See N.J.S.A. 2A:14-2(a).
We cannot ascertain whether oral argument took place on the return date, May 28. The record does not contain any transcript and the judge's order and accompanying statement of reasons do not reflect that oral argument occurred.*fn3 After citing relevant case law, the judge concluded:
[I]t is clear that the Court did not overlook or fail to give enough weight to any fact previously submitted in the original motion. Further, nothing indicates that the Court acted in an arbitrary, capricious, or unreasonable manner. The Court finds that the defendant [sic] has not offered any additional new evidence or persuasive arguments to overturn the Court's decision. Instead, Defendants [sic] merely reiterate the same arguments previously presented to the Court during ...