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Allen v. Gabriel

Superior Court of New Jersey, Appellate Division

September 11, 2013

JOHN ALLEN, Plaintiff-Appellant,


Submitted August 6, 2013

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0610-10.

John Allen, appellant pro se.

Respondents have not filed a brief.

Before Judges Lihotz and Guadagno.


Plaintiff John Allen, an inmate at New Jersey State Prison (NJSP), appeals from the December 16, 2011 order of the Law Division denying his motion to set aside default, entered after the court determined he failed to present proof of service. Plaintiff also appeals from the January 20, 2012 order denying his motion for reconsideration. We affirm both orders.

On March 10, 2006, plaintiff was examined at the NJSP clinic after he complained of pain in his right arm. Six days later, plaintiff was examined in the clinic by another doctor who ordered an x-ray of plaintiff's right arm. The x-ray was negative. When plaintiff continued to complain of pain, an MRI was ordered in October 2006, which was also negative.

In 2007, plaintiff injured his left biceps and required surgery in 2008. Plaintiff claims the surgeon also examined his right biceps and told him it was a "chronic injury and irreparable."

In April 2010, plaintiff filed a complaint in the Law Division alleging malpractice, violation of his civil rights and other causes of action. Named as defendants were two of plaintiff's treating physicians, a nurse, St. Francis Medical Center and several "John Does."

In July 2010, plaintiff received a notice his complaint would be dismissed for lack of prosecution. After default was entered, plaintiff's motion to set aside the default and reinstate his complaint was denied on December 16, 2011.

Plaintiff's motion for reconsideration was denied on January 20, 2012. The order indicates the motion judge placed his reasons for denying plaintiff's motion on the record but plaintiff has failed to provide a copy of this transcript as required by Rule 2:5-3.

The record contains no proof that any of the named defendants were properly served. Service of process is inherently linked to the requirement that a court have personal jurisdiction over a defendant and is designed to protect the defendant's individual liberty interest established by the Due Process Clause. Rosa v. Araujo, 260 N.J.Super. 458, 463 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993); see also Ins. Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492, 501 (1982).

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." O'Connor v. Altus, 67 N.J. 106, 126 (1975).

Plaintiff maintains the mere filing of his moving papers in the Law Division "constituted proof of service on [his] adversaries as mandated by R. 1:5-3." We disagree.

Rule 1:5-2 permits service by certified mail, or, if the party refuses to claim or accept delivery, by ordinary mail to the party's last known address. Rule 1:5-3 prescribes the proof of service requirements:

Proof of service of every paper referred to in R. 1:5-1 may be made (1) by an acknowledgment of service, signed by the attorney for a party or signed and acknowledged by the party, or (2) by an affidavit of the person making service, or (3) by a certification of service appended to the paper to be filed and signed by the attorney for the party making service. If service has been made by mail the affidavit or certification shall state that the mailing was to the last known address of the person served. A proof of service made by affidavit or certification shall state the name and address of each attorney served, identifying the party that attorney represents, and the name and address of any pro se party. The proof shall be filed with the court promptly and in any event before action is to be taken on the matter by the court. Where service has been made by registered or certified mail, filing of the return receipt card with the court shall not be required. Failure to make proof of service does not affect the validity of the service, and the court at any time may allow the proof to be amended or supplied unless an injustice would result.

While Rule 1:5-3 requires only that a proof of service certification "state that the mailing was to the last known address of the person served, " plaintiff has provided no proof of service upon any of the named defendants.

We are satisfied there was no error and no abuse of discretion by the motion judge in denying plaintiff's motion to vacate default. Plaintiff's challenge to the denial of his motion for reconsideration is procedurally deficient to the point of prohibiting any meaningful review. R. 2:8-2.

We affirm the denial of plaintiff's motion to vacate default and dismiss that portion of his appeal challenging the denial of his motion for reconsideration.

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