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


October 6, 2011


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

Per curiam.


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, without prejudice, for "lack of prosecution."

On April 22, the motion judge denied defendants' motion to dismiss and granted Richard's motion to enjoin defendants from disposing of the property at issue without seeking leave of the court. The motions were decided without oral argument, despite the fact that it had been requested. In addition, there was no explanation of the judge's reasons. The order, which was prepared by the judge, noted that the amended complaint had been filed.

On May 18, defendants' new counsel wrote to Richard and requested that he serve her with a signed, filed copy of the amended complaint. When he failed to do so, she obtained a filed copy directly from the Civil Division. She then wrote to Richard, stating that she "acknowledge[d] service of the Amended Complaint as of [May 18]" on behalf of her clients, Robert and Bonita. She asserted that they would have until June 22 to file a responsive pleading. She also informed Richard that Robert and Bonita would respond to Richard's discovery requests as if they had been served on the day she obtained the filed copy of the amended complaint.

Richard filed several motions on May 24: three discovery motions; one motion to strike defendants' pleadings or preclude the filing of the same; and two motions to refer defendants' first two attorneys to the Office of Attorney Ethics (OAE). Richard requested oral argument. On June 10, Richard filed a notice of motion to enter a default against defendants. He again requested oral argument.

On May 28, 2010, Richard received a notice from the Civil Division that the case had been dismissed without prejudice for lack of prosecution. On June 17, 2010, he sent a letter to the motion judge asking him to look into the notices concerning dismissal for lack of prosecution, informing the judge that he had previously attempted to resolve the issue with the Civil Division without success.

On July 9, without holding the requested oral argument, the judge entered an order denying the motions Richard filed on May 24. He denied the discovery motions and the motion to preclude defendants from filing additional pleadings because the case had been dismissed. He denied the request to refer the two attorneys to OAE because "the relief sought herein cannot be granted under the procedure employed by the movant."

On October 28, 2010, Richard filed a motion to restore the action against Robert and Bonita only, and also to compel them to respond to the discovery requests he had previously propounded. He attached proofs of service stating that he had personally served Bonita with the original complaint on November 17, 2009, and had served the amended complaint on her and Robert by certified mail on September 7, 2010. He included return receipts signed by Robert on his own and on Bonita's behalf, both dated September 8, 2010. Richard also included certifications of diligent inquiry in his motion papers.

Richard's notice of motion had requested oral argument if opposition was filed. Although no opposition papers are contained in the record, the judge's December 10, 2010 order indicates that the motion was opposed. Nevertheless, the judge did not allow oral argument.

The judge denied Richard's motion to restore the action. He wrote at the bottom of the first page of the order:

"defendants were never properly served - see R. 4:4-4."*fn3 This appeal followed.*fn4

We reverse the order denying restoration of the complaint. Counsel for Robert and Bonita accepted service of the amended complaint on their behalf as of May 18, 2010. Consequently, there was no lack of prosecution. Although Richard tried to rectify the situation when he received the dismissal warning and then the notice of dismissal, it is not clear whether he actually forwarded a copy of the letter accepting service to the Civil Division or to the judge.

In addition, service of an amended complaint on existing parties who are represented by counsel is made by service on their attorney. R. 1:5-1(a). Richard's certified that he served defendants' initial attorney with a copy of the amended complaint. Indeed, it appears that the judge denied defendants' motion to dismiss, in part, based upon his determination that the amended complaint had been filed and served. Nevertheless, because there is no proof of initial service on defendants other than Robert and Bonita, we order restoration of the amended complaint only as to them.

Finally, although case management at the trial level is generally left to the discretion of the presiding judges of those courts, we recommend that consideration be given to the holding of a case management conference in this case. See R. 4:5B-2.


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