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Richard K. Cacioppo, Sr v. Robert K. Cacioppo and Bonita Merino Cacioppo

October 6, 2011

RICHARD K. CACIOPPO, SR., PLAINTIFF-APPELLANT,
v.
ROBERT K. CACIOPPO AND BONITA MERINO CACIOPPO, DEFENDANTS-RESPONDENTS,
AND EDYTHE MERINO, DENISE CACIOPPO BENTON, AND JOSEPH A. ASCOLI, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9311-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2011

Before Judges Lihotz and Waugh.

Plaintiff Richard K. Cacioppo, Sr.,*fn1 appeals from the denial of his motion to reinstate his amended complaint after it was dismissed for failure to prosecute. We reverse.

We discern the following facts and procedural history from the record on appeal.

In November 2009, Richard*fn2 filed a complaint with thirteen counts against his brother, defendant Robert K. Cacioppo, and Robert's wife, defendant Bonita Merino Cacioppo. The complaint alleged that Robert and Bonita conspired to deprive Richard of property that once belonged to Richard and Robert's mother. It also alleges that Robert breached a contract concerning a perfume distribution company the brothers had agreed to start as a joint venture.

On December 18, 2009, Robert and Bonita moved to dismiss the complaint under Rule 4:6-2(e) (failure to state a claim upon which relief can be granted). Their motion papers did not contend that they had not been properly served with the complaint.

In January 2010, Richard filed a cross-motion, seeking to file an amended complaint with additional counts and defendants. The additional defendants were Bonita's mother, Robert and Bonita's daughter, and defense counsel. Richard also sought to disqualify defense counsel.

In February, the motion judge granted Richard leave to file an amended complaint, but denied his motion to disqualify defense counsel. He ordered Richard to serve defendants with the amended complaint within fourteen days. The judge also denied defendants' motion to dismiss the original complaint, characterizing the motion as moot because there was to be an amended complaint.

Defense counsel sent Richard a copy of the judge's order on the motions by email and regular mail. He also advised Richard that he needed to serve the amended complaint. Although Richard responded that a copy of the amended complaint had been attached to his motion for leave to amend, he mailed a copy of the amended complaint to defense counsel.

In March 2010, defendants filed a motion to dismiss, citing Richard's failure to file and serve the amended complaint. They also renewed their motion to dismiss under Rule 4:6-2(e).

Richard filed a cross-motion, seeking to enjoin defendants from destroying the property of his late mother and allowing him to inspect such property. He requested oral argument. Defense counsel sent a letter to the motion judge in opposition to Richard's cross-motion and in further support of defendants' motion. Counsel argued that, although Richard had sent him a copy of the amended complaint, he had not complied with the terms of the judge's order because the copy was not stamped as filed and was not signed by Richard.

On March 26, 2010, the Middlesex Vicinage Civil Division (Civil Division) sent Richard a notice that his claims against Barbara and Robert would be dismissed on May 25, ...


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