On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9704-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lihotz.
Plaintiff Herbert Aponte appeals from a May 28, 2009, Law Division order, denying his second motion to vacate an order dismissing his complaint, which alleged defendants, Township of Bloomfield Police Officers Lopez and Cartegena, falsely imprisoned him following an unlawful arrest. By order filed on June 21, 2008, the complaint, which had been filed on December 5, 2007, was dismissed for failure to prosecute the action, as plaintiff had not filed proof he served the complaint upon defendants. R. 1:13-7(a). Almost seven months later, plaintiff moved to vacate the order of dismissal and reinstate the complaint. This motion was denied on February 6, 2009, as the court determined plaintiff had not shown excusable neglect explaining the untimely request and had not submitted valid proof of service. On May 1, 2009, plaintiff moved to vacate the dismissal for a second time, resulting in the order under review on appeal.
Plaintiff suggests his "process server Ralphie Aponte" attempted personal service upon the officers but was "given a run[-]a[-]round." He then served the individual officers indirectly, using substituted service when he mailed a copy of his complaint, certified mail, return receipt requested, addressed to the Bloomfield Township Mayor Raymond McCarthy and Lieutenant Joseph Pulido of the Internal Affairs Unit of the Bloomfield Township Police Department. Both copies were mailed to 1 Municipal Plaza in Bloomfield, where township employee, Edgar Bert, accepted the two certified letters on June 18, 2008.
Plaintiff argues service was perfected as provided by Rule 4:4-7 and the Law Division judge could not demand service by the Sheriff's Office. He requests the May 28, 2009 order be reversed and the complaint be reinstated. Additionally, he requests the Essex County Sheriff's Office serve the complaint upon defendants.
Service of process of a complaint is essential to obtain personal jurisdiction over a named defendant. Perfecting personal service is neither discretionary nor optional. It is fundamental, as without proper service, a court lacks jurisdiction over a party and has no authority to enter judgment affecting that party's rights or property. City of Passaic v. Shennett, 390 N.J. Super. 475, 483 (App. Div. 2007).
The rules governing the procedure of our courts explicitly require personal service of the summons and complaint, R. 4:4-4(a), to be made "by the sheriff, or by a person specially appointed by the court for that purpose, or by plaintiff's attorney or the attorney's agent, or by any other competent adult not having a direct interest in the litigation." R. 4:4-3(a). However, if personal service cannot be effectuated "after a reasonable and good faith attempt," other methods are available. R. 4:4-3(a). "A party's good faith effort to personally serve a defendant must be 'described with specificity in the proof of service.'" Shennett, supra, 390 N.J. Super. at 483 (quoting R. 4:4-3(a)).
Substituted service "by registered[,] certified . . . [or] ordinary mail" is permitted only after a plaintiff first made "a reasonable and good faith attempt" to serve defendant personally, R. 4:4-3(a), as particularly described in a proof of service filed with the court in the form set forth in Rule 4:4-7. Accord Shennett, supra, 390 N.J. Super. at 483. Substituted service is also deemed to satisfy the rigors of fundamental due process only when a "defendant answers or otherwise appears in the action" after receipt of the mailed complaint. Citibank, N.A. v. Russo, 334 N.J. Super. 346, 351 (App. Div. 2000) (citing R. 4:4-4(c)). In this regard, a defendant may also duly acknowledge service of a summons and complaint. See R. 4:4-6 (providing an "acceptance of the service of a summons . . . signed and acknowledged by the defendant . . . shall have the same effect as if the defendant had been properly served").
We disagree with plaintiff's assertion that he employed steps to fully comply with the rules governing service of process of his complaint. He failed to file a return of service as provided in Rule 4:4-7, offering no basis to discern whether reasonable and good faith efforts were made justifying substituted service. Also, when plaintiff mailed copies of the complaint he did not send them to the named defendants, who understandably never acknowledged receipt, answered the complaint, or appeared before the court. R. 4:4-4(c).
The Law Division record contains no return of service by Ralphie Aponte detailing his efforts or explaining defendants' alleged attempts to avoid personal service. R. 4:4-7. We note for the first time on appeal, plaintiff includes an unsworn, August 6, 2010 statement attributed to Ralphie Aponte, but even this includes only a general recital that he was unable to speak to the defendants or obtain their mailing addresses because his service attempt occurred earlier than their scheduled 5 p.m. shift commenced and supervisors declined to accept the documents on the officers' behalf. This submission does not comply with Rule 4:4-7.*fn1
More important, because this statement was not submitted before the trial court, it cannot be considered by this court on appeal. R. 2:5-4; Finderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007); Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234-35 (1973).
Regarding the letters plaintiff sent by certified mail, he admits they were not addressed to defendants. Also, plaintiff does not assert defendants acknowledged receipt, filed a response to the complaint, or appeared in the action. Service upon a party using certified, registered, or ordinary mail is effective for the purposes of due process only when ...