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Regina Baskett, Diano Baskett, and Patricia Crumidey v. Kwokleung Cheung

October 17, 2011

REGINA BASKETT, DIANO BASKETT, AND PATRICIA CRUMIDEY, PLAINTIFFS-APPELLANTS,
v.
KWOKLEUNG CHEUNG, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7044-07.

The opinion of the court was delivered by: Jonathan N. Harris, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 14, 2011 - Decided

Before Judges Fuentes, J. N. Harris, and Koblitz.

The opinion of the court was delivered by JONATHAN N. HARRIS, J.A.D.

This case involves the 2008 amendments to Rule 1:13-7(a), our docket-clearing rule that is designed to balance the institutional needs of the judiciary against the principle that a just result should not be forfeited at the hands of an attorney's lack of diligence. Plaintiffs appeal from an order of the Law Division entered on July 23, 2010, denying their application to reinstate their complaint and dismissing the action with prejudice. They also seek relief from the order of August 27, 2010, denying their motion for reconsideration. We reverse and remand the matter for further proceedings.

I.

The genesis of this case stems from an August 18, 2005, automobile collision along Route 27 in Edison. Just days before the expiration of the two-year statute of limitations, plaintiffs Regina Baskett (the driver), Diano Baskett (a passenger), and Patricia Crumidey (a passenger), filed a six-count complaint against a single defendant, Kwokleung Cheung (the other driver), in the Middlesex vicinage.

For reasons that remain unclear, defendant was not personally served with process. Accordingly, on December 27, 2007 -- approximately four months after the filing of the complaint -- a sixty-day notice of future dismissal pursuant to Rule 1:13-7(a) was issued by the Law Division and sent to plaintiffs' designated trial attorney at the New Brunswick address*fn1 indicated in the complaint.

It was later revealed during motion practice that the designated trial attorney actually worked elsewhere. The scrivener of the complaint worked in the New Brunswick office; the designated trial attorney worked in Trenton. The law firm had operational procedures to ensure that each location would forward to the other any necessary paperwork involving its clients' matters. Unfortunately, those procedures failed, as the designated trial attorney in Trenton never received the Rule 1:13-7(a) notice from the New Brunswick office.

Not having received the notice of future dismissal, plaintiffs' counsel did nothing on his own initiative to advance the case. Since defendant had never been served, there was no discovery to conduct. Similarly, there was no opportunity to enter default and apply for a default judgment. Instead, the processes of Rule 1:13-7(a) hurried along, and on February 27, 2008,*fn2 plaintiffs' complaint was dismissed without prejudice. Thereafter, plaintiffs' case remained idle. The record does not reveal what plaintiffs or their attorney did for the next two years.

Eventually, animated by unknown events, plaintiffs' attorney was replaced on May 19, 2010, by their current counsel. Immediately thereafter, defendant was served with the complaint, and on June 17, 2010, plaintiffs' new attorney filed a motion to reinstate the complaint. Defendant opposed reinstatement and cross-moved to dismiss the complaint with prejudice.

At oral argument of the competing motions, the Law Division rightly noted, "we don't have an explanation as to the delay in service of process . . . for some three years." The motion judge also observed, "I do think that a case that is five years [old], all the medical records would need to be obtained, and -- and probably very dim memories and very difficult [for] defendant to defend, possibly even to prosecute, but certainly to defend." Applying the standard of exceptional circumstances,*fn3 which was never challenged by any of the parties, the motion judge ultimately held, "I don't find that the plaintiffs have ...


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