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Brian J. Mccafferty v. Just For Men

December 9, 2011

BRIAN J. MCCAFFERTY, PLAINTIFF-APPELLANT,
v.
JUST FOR MEN, COMBE INC.*FN1 , DEFENDANTS-RESPONDENTS, AND WALGREENS DRUGS, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County,L-3497-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 15, 2011

Before Judges Reisner and Hayden.

Plaintiff appeals from a July 9, 2010 order dismissing his complaint with prejudice under Rule 4:23-5(a)(2), and from an October 5, 2010 order denying his motion for reconsideration and to restore the complaint to the active calendar. Based on the unusual circumstances of this case, we reverse and remand this matter to the trial court.

I

This appeal results from a series of errors. Plaintiff's personal injury complaint was filed in 2002. The complaint was dismissed without prejudice in 2004, due to plaintiff's failure to provide discovery, but it was reinstated by consent, by order dated October 13, 2005. Thereafter, the parties continued to engage in discovery. In September 2007, defendants again moved to dismiss without prejudice, due to plaintiff's failure to appear for an IME.

On this record, however, there is no dispute that the parties resolved that discovery motion through another consent order. According to a December 4, 2007 letter from defendant's then-attorney to plaintiff's counsel, the parties signed the stipulation on "November 8, 2007." Defense counsel's letter further recited that "[t]he stipulation was reduced to an order signed by [the motion judge] and filed on November 16." However, for reasons not satisfactorily explained on this record, the attorneys do not have a copy of the consent order in their files.

For reasons also not satisfactorily explained on this record, the clerk's office entered a notation on the case management system that the case was dismissed without prejudice. Apparently, either this was an erroneous entry or the court signed the wrong order in the case and neither party received a copy of that order. By the time counsel learned, in 2009, that the case was dismissed, the file had been archived and, after searching in response to counsel's request, the clerk's office could not find a copy of the purported dismissal order.

Meanwhile, believing that their consent order had been filed and the dismissal motion resolved, plaintiff's counsel and the original defense attorney continued taking discovery. As part of that process, plaintiff appeared for his IME on January 4, 2008, thus providing the discovery that was the subject of the 2007 motion.

At some point thereafter, a new defense attorney from the same firm took over the case. On October 23, 2009, that new attorney sent plaintiff's counsel a letter enclosing a document demand and asking to discuss "the next step in the litigation process" because the case "appears to have been marked 'dismissed' in the court[']s computers for over two years." He asserted that "this constitutes abandonment." Defense counsel sent a second letter on November 30, 2009, again asserting that the dismissal "constitutes abandonment" and threatening to file a motion to dismiss the case with prejudice if plaintiff's counsel did not respond to his letter. On December 15, 2009, defense counsel filed a motion to dismiss the case with prejudice "pursuant to R. 4:23-5(a)(2) or in the alternative . . . without prejudice pursuant to R. 4:23-5(a)(1)."

Plaintiff filed opposition, supported by a certification of plaintiff's counsel, explaining that the case had been dismissed in error and asking that the case be reinstated to the active calendar. He stated:

As to the matter being dismissed and the file placed into storage by the court, I am at a loss to explain this. The fact of the case's inactivity only became known to me in the context of this motion and the correspondence leading up to it. I submit that the matter should never have been dismissed, and that it should be reinstated to the active calendar.

Neither me nor my adversary filed any motions, received any orders, nor were sent any notices of a sua sponte action on the ...


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