On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5604-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Sapp-Peterson and Ostrer.
Plaintiff appeals from a Law Division order pursuant to Rule 4:23-5(a)(2) dismissing his complaint with prejudice for failure to answer interrogatories. We are not convinced defendant properly obtained or served the initial order of dismissal without prejudice under Rule 4:23-5(a)(1); and service was not timely made of the motion to dismiss with prejudice under Rule 4:23-5(a)(2). Therefore, we reverse the order of dismissal with prejudice and remand.
Plaintiff filed a pro se complaint in July 2009 alleging defendant New Jersey City University engaged in racial and national origin discrimination in its grading practices.*fn1 The record indicates plaintiff had actively participated in the pre-trial phase of his case.*fn2 He submitted to depositions, and attended a mediation session in February 2010, and paid part of the cost of the mediator's fee. Two deputy attorneys general apparently handled this case before the matter was transferred to the deputy who filed the motions to dismiss.
Plaintiff asserts he moved from his prior address in Newark in August 2010. However, he waited until November 16, 2010 to write to the civil case manager in Essex County to notify the court of the change. The letter did not disclose when plaintiff had moved. Plaintiff sent copies of his letter to the university's in-house counsel and the deputy attorney general who, unbeknownst to plaintiff, by that time had transferred the file. The deputy ultimately in charge of the case acknowledged in his brief that he received plaintiff's letter after the university's counsel forwarded it to him by email on November 30, 2010.
Thus, apparently unaware of plaintiff's change of address until November 30, 2010, the new deputy responsible for the file used plaintiff's Newark address on August 25, 2010 when he served interrogatories and a notice to produce on plaintiff, by regular and certified mail. The certified mail version was unclaimed and returned to the sender in September. The deputy asserts the regular mail was never returned.
The deputy then wrote to plaintiff on October 27, 2010, again to the Newark address, asserting plaintiff's responses were overdue and warning that responses were required within ten days "to avoid motion practice pursuant to N.J. R. 4:23-5." This letter also was sent by regular and certified mail. The certified version was returned unclaimed, apparently around November 16, 2010. The deputy acknowledges in his brief the letter sent by regular mail was returned to sender "several months" later.
Having received no response from plaintiff, defendant filed a motion to dismiss the complaint without prejudice pursuant to Rule 4:23-5(a). The deputy apparently served the motion on plaintiff at his Newark address by regular and certified mail. The cover letter to the clerk of the court was dated November 15, 2010. The deputy acknowledges in his brief that the certified-mail version of the motion was return unclaimed and the regular-mail version was returned undelivered "several months later."
Based on his receipt on November 30, 2010 of plaintiff's November 16, 2010 change-of-address letter, the deputy was aware the motion to dismiss was misdirected to plaintiff's old address, and plaintiff likely had not received formal notice of the motion. The court was apparently uninformed of this apparent lack of actual service, and the motion to dismiss without prejudice was granted December 3, 2010.
However, plaintiff acknowledges in his brief that he learned defendant "was trying to dismiss my case," when he called the clerk's office "around the end of November" to ascertain the status of his case. He asserted he called the clerk because he had been unsuccessful in contacting the deputy whom he thought was still handling the case, to discuss his ability to depose representatives of defendant. In response to this information, plaintiff asserts he unsuccessfully attempted to reach the same deputy to discuss defendant's effort to obtain dismissal of his complaint.
Defendant attaches no documentary proof, nor does the deputy assert in his brief that he served the December 3 order on plaintiff. However, in plaintiff's brief and in oral argument before the court, plaintiff denied receiving the December 3 order until he received the motion to dismiss with prejudice in February.
By letter dated January 31, 2011, but mailed February 1, 2011, defendant filed and served, this time at plaintiff's East Orange address, the motion to dismiss with prejudice. It was returnable February 18.*fn3 Plaintiff acknowledges that he received the version sent by regular mail on February 7, informing him of the December 3 dismissal and the hearing on the motion to dismiss with prejudice. Although he also asserted he received "the registered one in February 9, 2011 . . . [which] contained ...