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Joseph Luongo v. Zachary D. Linke


June 13, 2012


On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3848-09.

Per curiam.


Submitted May 8, 2012 --

Before Judges Yannotti and Kennedy.

Plaintiff Joseph Luongo appeals from an order entered by the Law Division on July 13, 2011, denying his motion for reinstatement of his complaint pursuant to Rule 1:13-7(a), and an order entered on September 19, 2011, denying his motion for reconsideration. We reverse.

This appeal arises from the following facts. On September 22, 2007, plaintiff was operating a motor vehicle, traveling southbound on Main Avenue near Route 3 in Clifton, New Jersey. According to plaintiff, defendant Zachary D. Linke (Linke) was operating a vehicle traveling northbound on Main Avenue. Plaintiff claims that Linke attempted to make a left turn into a driveway and collided with plaintiff's vehicle, causing him to sustain serious and permanent injuries. According to the police report, Linke was driving a vehicle owned by an entity called "Vault," with an address in Parsippany, New Jersey.

On September 3, 2009, plaintiff filed a complaint in the Law Division naming Linke, Vault and Geico Insurance Company (Geico) as defendants. He alleged that on September 22, 2007, Linke had operated his vehicle "in a careless, reckless and/or negligent manner." Plaintiff further alleged that, as a result of Linke's "carelessness, recklessness and/or negligence," he sustained serious bodily injuries, including a "permanent injury, within a reasonable degree of medical probability, other than scarring or disfigurement."

Plaintiff additionally alleged that, at the time of the accident, he was "insured for personal injury protection (PIP) benefits under [a policy issued by] G[eico]." Plaintiff claimed that, "despite repeated demands for payment of past and future PIP benefits, income continuation benefits, essential service benefits, and reimbursement for rental payments," Geico refused to make such payments, which plaintiff claimed were required under the terms of the policy.

On December 28, 2009, plaintiff's attorney executed a stipulation dismissing without prejudice the claims against Geico. The stipulation stated that the parties had agreed that the proper forum for the PIP claims was arbitration.

In January or February 2010, the Bergen County Sheriff attempted to serve Linke at an address in Lyndhurst but was unable to do so because he had moved from that address. On or about March 18, 2010, a postal search was undertaken, and it was returned indicating that the forwarding order had expired. On April 1, 2010, the court dismissed the complaint for failure to prosecute.

Plaintiff's attorney did not perform a "skip trace" until January 6, 2011, which showed that Linke was residing at an address in Brighton, Massachusetts. Plaintiff served Linke at that address on January 19, 2011. Plaintiff's attorney and Linke's attorney agreed to extend the time for Linke to file an answer, but the trial court advised Linke's attorney that the matter had been dismissed.

In March 2011, plaintiff's attorney attempted to serve the complaint upon Vault, but was unable to do so. Plaintiff suggests that the company may have gone out of business.

On June 17, 2011, plaintiff filed a motion seeking reinstatement of the complaint. In support of the motion, plaintiff submitted a certification from Joseph Albano (Albano), an associate of the Fusco & Macaluso law firm. Albano stated that the "dismissal for failure to prosecute was inadvertent and unintentional . . . ." He stated that the dismissal "resulted from uncertainty" of Linke's address. Linke did not oppose the motion.

The court entered an order dated July 13, 2011, upon which the court wrote that the application had been denied since plaintiff had not shown "exceptional circumstances" as required by Rule 1:13-7(a). The court wrote that plaintiff had not explained why service was made upon Linke more than a year after the complaint was dismissed. The court indicated that a showing of "exceptional circumstances" was required because this is a "multi-party" case.

On August 19, 2011, plaintiff filed a motion seeking reconsideration of the court's July 13, 2011 order. In a supporting certification, Albano stated that, although Rule 1:13-7(a) requires a showing of "exceptional circumstances" in a multi-party action when a motion to restore is made more than ninety days after dismissal of the complaint, this requirement was based on the concern that the case would have likely proceeded as to other parties, with discovery having been taken. Albano said that this case had not gone forward and there had been no discovery. He stated that the matter could therefore proceed without any of these case management problems. Linke did not oppose the motion.

The court entered an order dated September 19, 2011, denying the motion. The court noted on the order that plaintiff had provided no basis for reconsideration of the July 13, 2011 order. This appeal followed.

Plaintiff argues that the trial court erred by denying his motion to reinstate the complaint as to Linke. Plaintiff says that this is, in fact, a multi-party case but there are no active defendants other than Linke. He also says that no other defendants are likely to become active. Plaintiff therefore argues that this case presents a situation "more akin" to those involving a single defendant and motions to reinstate dismissed complaints in such cases are liberally granted.

Rule 1:13-7(a) provides that a complaint shall be dismissed without prejudice as to any named defendant within a specified period of time if the plaintiff has not taken one of the actions enumerated in subsection (b) of the rule. Those actions include the filing of a "proof of service or acknowledgement of service." R. 1:13-7(b). In addition, Rule 1:13-7(a) states that:

After dismissal, reinstatement of an action against a single defendant may be permitted on submission of a consent order vacating the dismissal and allowing the dismissed defendant to file an answer, provided the proposed consent order is accompanied by the answer for filing, a case information statement, and the requisite fee. If the defendant has been properly served but declines to execute a consent order, plaintiff shall move on good cause shown for vacation of the dismissal. In multi-defendant actions in which at least one defendant has been properly served, the consent order shall be submitted within 60 days of the order of dismissal, and if not so submitted, a motion for reinstatement shall be required. 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.

"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.'" Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007) (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989)). "Dismissals under the rule are 'without prejudice.'" Ibid. (citing R. 1:13-7(a)). Therefore, "the right 'to reinstatement is ordinarily routinely and freely granted when plaintiff has cured the problem that led to the dismissal even if the application is made many months later.'" Ibid. (quoting Rivera v. Atl. Coast Rehab. Center, 321 N.J. Super. 340, 346 (App. Div. 1999)).

In Ghandi, we noted that, effective September 5, 2000, Rule 1:13-7 had been "amended to provide for reinstatement [of a complaint] after dismissal . . . for good cause shown." Id. at 197. We also noted that, under the former rule, the trial courts were guided by the standards in Rule 4:37-2(a) ("failure to issue timely service of process") and Rule 4:4-1 (restoring complaint when a delay in service has occurred). Ibid. (citing Rivera, supra, 321 N.J. Super. at 346).

We observed that in such cases, we had "'uniformly held even a substantial delay - in some cases a year or more - will not bar the continued prosecution of the action when the failure of timely service was either for good cause or attributable only to counsel's neglect and, in addition, the defendant was not prejudiced thereby in the ability to maintain a defense.'" Id. at 196-97 (citing Rivera, supra, 321 N.J. Super. at 346-47). We stated that, "[n]otwithstanding the adoption of the good cause standard, [in the rule amendments] . . . absent a finding of fault by the plaintiff and prejudice to the defendant, a motion to restore under the rule should be viewed with great liberality." Id. at 197.

We also stated that, in appropriate cases, the court may relax the requirements of the rule "if adherence to it would result in an injustice[.]" Id. at 198 (citing R. 1:1-2). We noted that "'courts should be reluctant to penalize a blameless client for the mistakes of the attorney.'" Ibid. (quoting Familia v. Univ. Hosp. of Univ. of Med. & Dentistry of N.J., 350 N.J. Super. 563, 568 (App. Div. 2002)). We pointed out that courts are disinclined to dismiss a matter where the statute of limitations would bar the filing of a new complaint. Ibid. (citing Mason, supra, 233 N.J. Super. at 268-69).

Here, the trial court correctly observed that this case is a multi-party action, in which plaintiff named three defendants

- Linke, Vault and Geico. Plaintiff agreed to dismiss the claims against Geico and pursue those claims in arbitration. Moreover, plaintiff's efforts to serve Vault were unsuccessful. According to plaintiff, it appears that Vault may have gone out of business and is unlikely to become an active party. In any event, the trial court correctly determined that, as pled, this case remains a multi-party action.

Thus, the trial court did not err by citing the "exceptional circumstances" standard in Rule 1:13-7(a). As the record shows, plaintiff did not seek to reinstate the complaint as to Linke within ninety days after his complaint was dismissed without prejudice. We are convinced, however, that even if plaintiff failed to meet the "exceptional circumstances" standard in the rule, the court erred by failing to relax the rule in the interest of justice. R. 1:1-2.

In this case, there is no indication that plaintiff had any responsibility for his attorney's failure to serve Linke more expeditiously. Moreover, although the complaint was dismissed without prejudice, denial of the motion to reinstate effectively precludes plaintiff from pursuing his claims because the statute of limitations has run. As we stated previously, a court should be disinclined to deny a motion for reinstatement where, as here, the statute of limitations would bar the filing of a new complaint.

In addition, there is no indication that Linke would be prejudiced by reinstatement of the complaint. Indeed, after Linke was served, his attorney sought plaintiff's consent to the filing of the answer out-of-time, and Linke did not oppose plaintiff's motion for reinstatement of the complaint or plaintiff's motion for reconsideration.

In his brief before this court, Linke now maintains that he would be prejudiced by reinstatement of the complaint. He notes that the accident that is the subject of the complaint occurred several years ago. He asserts that "[t]here is a great likelihood that witnesses can no longer be found." He also asserts that there is "a great potential that evidence has either been destroyed, lost[,] or has deteriorated." We are not persuaded by these arguments. Linke's claim of prejudice rests on speculation. Linke has not identified any witness who cannot be found, nor has he identified any evidence that has been "destroyed, lost[,] or has deteriorated."

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.


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