On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-350-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012 -
Before Judges Waugh and St. John.
Plaintiff Sung Kim appeals the October 19, 2011 order of the Law Division dismissing her complaint for failure to prosecute. She also appeals several interlocutory orders issued prior to the dismissal. We affirm the interim orders, but reverse the order of dismissal and remand for further proceedings consistent with this opinion.
This case involves a relatively simple claim for property damage to Kim's car resulting from an accident involving a vehicle allegedly owned by defendants Lisa and Blake Henry and driven by defendant Renata Paulella, who was employed by the Henrys as a live-in nanny at the time of the accident. The Henrys, through their attorney, attempted to settle the claim several times, both before and after the filing of suit. Kim declined the settlement offers, refusing to sign releases requested as part of the settlement and insisting on payment for diminished value, interest, and costs.
Kim, who has represented herself throughout this litigation, filed a complaint against the Henrys and Paulella in the Special Civil Part in October 2008. After an answer was filed by the defendants, Kim withdrew the complaint on February 2, 2009.
On February 6, Kim filed a complaint in the Law Division against the same defendants, alleging property and consequential damages. Defense counsel filed an answer on behalf of the Henrys, but took the position that Paulella had not been properly served. The claims against Paulella were subsequently dismissed for failure to prosecute because she had not been served. R. 1:13-7.
In November 2009, the Henrys moved for summary judgment, arguing that Blake Henry was not an owner of the vehicle and that Kim could not prove that Paulella was acting as their agent at the time of the accident. By order dated January 8, 2010, the judge granted the motion as to Blake Henry, but denied it as to Lisa Henry. He also ordered that Lisa Henry appear for a deposition within forty-five days.
During subsequent motion practice, the judge entered orders
(1) extending discovery and denying Kim's application to reinstate the claim against Paulella (February 19, 2010 order),
(2) denying Kim's motion to file an amended complaint to add her daughter as a plaintiff, to reinstate the claim against Paulella, and to compel a videotaped deposition of Blake Henry (March 26, 2010 order), (3) extending discovery and scheduling arbitration (April 20, 2010 order), and (4) denying reconsideration of issues previously raised by Kim (July 28, 2010 order).
At the February 18, 2010 oral argument, which was Kim's first appearance in court, the following exchange took place:
THE COURT: Ms. Kim, I have your papers. This is your application, is there anything you'd like to say in addition to what you have in your paperwork?
UNIDENTIFIED FEMALE: Um --THE COURT: No, ma'am, you cannot speak for her. She filed the papers, she's proceeding pro se, she has to speak. Are you an attorney?
MS. KIM: Yes, ask my daughter.
THE COURT: I understand it's your daughter ma'am, but she can't represent you. She's not an attorney.
UNIDENTIFIED FEMALE: She doesn't understand the proceeding, so she has nothing to --THE COURT: Well, she filed the paperwork in English -- I imagine it's her paperwork, isn't it?
UNIDENTIFIED FEMALE: Correct.
THE COURT: So, she can speak English, is that right?
UNIDENTIFIED FEMALE: Right.
THE COURT: All right. If I need an interpreter I can ask for one, but if she filed this paperwork, she has the ability to speak English. ...