May 14, 2012
DORIS S. HUGGINS AND ROBERT L. HUGGINS, PLAINTIFFS-APPELLANTS,
MAURICE W. ARMSTRONG AND BILLIE R. DUNHAM, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-670-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012
Before Judges Ashrafi and Fasciale.
Plaintiffs appeal from an April 4, 2011 order denying their motion to reinstate their complaint. We affirm.
On March 16, 2005, Mrs. Huggins*fn1 was stopped in traffic on a bridge on-ramp in Trenton, when a van, operated by defendant Armstrong,*fn2 struck the passenger side of her vehicle. As Armstrong attempted to drive away, Mrs. Huggins pursued, beeping her horn until he pulled over. Police arrived, confirmed that Armstrong had two outstanding arrest warrants and did not possess a valid drivers' license, and arrested him. Mrs. Huggins complained of back pain and requested an ambulance, but then decided to go to the hospital on her own.
Plaintiffs obtained legal representation, and on March 12, 2007, filed a complaint alleging negligence and loss of consortium. On June 26, 2007, plaintiffs succeeded in serving Dunham. However, they were unsuccessful in attempts to serve Armstrong. On July 23, 2007, the judge entered an order relieving plaintiffs' attorneys as counsel of record for plaintiffs.*fn3 The attorneys communicated this to plaintiffs by letter dated August 4, 2007.
On June 28, 2008, the court administratively dismissed the complaint. On March 15, 2011, plaintiffs filed a motion to reinstate their complaint. On April 1, 2011, the judge conducted a motion hearing, heard oral argument from Mrs. Huggins, and issued an oral decision. On April 4, 2011, the judge entered an order denying plaintiffs' motion to reinstate the complaint. On May 18, 2011, plaintiffs filed this appeal.*fn4
We review a trial judge's denial of a motion to reinstate a complaint under the abuse of discretion standard. Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App. Div. 2011).
Rule 1:13-7(a) is "an administrative rule designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion." Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989). As Judge Keefe explained in Mason:
Often notice . . . of the court's intention to dismiss the action will serve to stimulate a renewed interest in the case. The problem which generates the notice is usually resolved and the case is not dismissed. When the notice does not have that salutary affect, the case is dismissed. [Ibid.]
The rule itself provides, in pertinent part:
[W]henever an action has been pending for four months . . . without a required proceeding having been taken therein . . ., the court shall issue written notice to the plaintiff advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice . . . unless, within said period, action . . . is taken. If no such action is taken, the court shall enter an order of dismissal without prejudice . . . .
After dismissal, a plaintiff can reinstate an action by submitting a consent order within 60 days; otherwise, "a motion for reinstatement shall be required." Ibid. "The motion shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted only on a showing of exceptional circumstances." Ibid.
Here, the court administratively dismissed plaintiffs' complaint on June 28, 2008. On March 15, 2011, almost three years later, plaintiffs filed their motion for reinstatement. Because that motion was not filed within 90 days of the dismissal, plaintiffs needed to show exceptional circumstances to have the complaint reinstated.
The judge found, after listening patiently to Mrs. Huggins' arguments, that plaintiffs had not shown good cause, a less stringent standard, for reinstatement or provided "any evidence of due diligence with regard to the prosecution of this matter." He explained that too much time had passed between the dismissal and the motion for reinstatement, that plaintiffs had failed to provide proof of service with respect to Armstrong, and that they had not diligently pursued the action against Dunham.
These findings are clearly supported on the record before us. Plaintiffs contend, as they did before the trial judge, that they never received notice of the dismissal because they twice changed residences. However, plaintiffs did not notify the court. Nonetheless, as the trial judge also recognized, this action did not remain dormant merely for a matter of months, but rather for a matter of years.