United States District Court, D. New Jersey
DORIS RICHARDS, LINDSAY BARBER; ESTATE OF JOAN BARBER, Plaintiff(s),
CHRISTOPHER WONG, M.D; COUNTY OF MERCER, JOHN AND JANE DOES I, II AND III, UNNAMED PHYSICIANS AND MEDICAL PERSONNEL; CHARLES ELLIS; CFG HEALTH SYSTEMS, LLC; AND GRACIANO ZARA, M.D. Defendants.
TONIANNE J. BONGIOVANNI, Magistrate Judge.
Currently pending before the Court is Plaintiffs' (Doris Richards, Lindsay Barber, and the Estate of Joan Barber) motion to extend the statutory period for serving an Affidavit of Merit. [Docket Entry No. 21]. Defendants (Christopher Wong, M.D., County of Mercer, John and Jane Does I, II, and III, Unnamed Physicians and Medical Personnel, Charles Ellis, CFG Health Systems, LLC, and Graciano Zara, M.D.) oppose Plaintiffs' motion. [Docket Entry Nos. 27, 35, and 36]. The Court has fully reviewed the papers submitted in support of and in opposition to Plaintiffs' motion. The Court considers Plaintiffs' motion without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth below, Plaintiffs' motion is DENIED.
I. Background and Procedural History
This matter arises out of Plaintiffs' motion to preserve the right to seek a statutory 60-day extension of the deadline for serving Defendants an Affidavit of Merit, pursuant to N.J.S.A. 2A:53A-27. ( See Motion for Extension of Time; Docket Entry No. 21). On or about December 24, 2013, Plaintiffs Doris Richards, Lindsay Barber and the Estate of Joan Barber (hereinafter "Plaintiffs") filed a Complaint pro se in the Superior Court of New Jersey, Law Division, Mercer County, docketed at MER-L-2774-13. The Complaint was filed against the County of Mercer, Charles Ellis, Christopher Wong, M.D., Graciano Zara, M.D., and CFG Health Systems, LLC. On April 23, 2014, Roger Martindell, Esquire was substituted into the New Jersey Superior Court action on behalf of the pro se Plaintiffs.
On May 14, 2014, Defendant Christopher Wong, M.D., filed an Answer. Subsequently, Defendants CFG Health Systems, LLC and Graciano Zara, M.D., filed their Answer and a Notice of Removal on May 27, 2014. [Docket Entry No. 1]. The case was removed from State to Federal District Court. On June 30, 2014, Defendants County of Mercer and Charles Ellis filed an Answer [Docket Entry No. 7], including separate defenses and an Answer to the crossclaims against the other Defendants. In their Answers, Defendants specifically pleaded both failure to state a claim and failure to serve an Affidavit of Merit, pursuant to N.J.S.A. 2A:53A-27. Id.
On December 5, 2014, Plaintiffs filed the motion at hand to extend the time to file an Affidavit of Merit.
A. PLAINTIFFS' ARGUMENTS
In their Complaint, Plaintiffs rely on N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-28, to put forth three arguments to show that good cause exists for granting a 60-day extension of time to serve an Affidavit of Merit: First, Plaintiffs claim that they have yet to receive the institutional medical records of the deceased after requesting the records. ( See Motion for Extension of Time; Docket Entry No. 21 at 5). Plaintiffs cite to N.J.S.A. 2A:53A-28, and state that a failure to disclose medical records after being served with a copy of a request for those records would be grounds to excuse compliance with the Affidavit of Merit statute. (Id. ) Second, Plaintiffs' counsel was diagnosed with cancer and was undergoing chemotherapy treatments. As such, Plaintiffs seek an additional 60 days to accommodate the medical condition and treatments of their counsel. Third, Plaintiffs argue that Defendants remained silent on the issue of submitting a timely Affidavit of Merit, despite the Court's repeated instructions to raise and confer on pretrial matters before filing motions. (Id. at 5-6). Therefore, Plaintiffs argue that Defendants' silence lulled them into inaction until after the expiration period of 120 days. For these reasons, Plaintiffs argue good cause exists to warrant a 60-day extension of time to serve the Affidavit of Merit.
B. DEFENDANTS' ARGUMENTS
Defendants oppose Plaintiffs' motion on the grounds that the Plaintiffs have exceeded the deadline to file an Affidavit of Merit. ( See Brief in Opposition; Docket Entry Nos. 27, 35 and 36). Defendants first cite to N.J.S.A. 2A:53A-27, which states in relevant part that:
"Plaintiff shall, within 60 days following the date of filing of the answer... provide each defendant with an affidavit of an appropriate licensed person... The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause."
Defendants argue that this 120-day statutory period is a "drop-dead" date by which a plaintiff must serve an appropriate Affidavit of Merit. (Id. at Docket Entry Nos. 27, 35 and 36). This 120-day period encompasses the 60-day period to provide an affidavit of an appropriate licensed person, and the 60-day extension. Since Plaintiffs failed to serve an appropriate Affidavit of Merit within 120 days of the filing of the Answer, Defendants argue the Complaint should be dismissed. Additionally, Defendants address the issue of Plaintiffs' counsel's medical condition with regards to timely filing the Affidavit of Merit. Defendants argue that although Plaintiffs' counsel had medical issues, there was another counsel of record, Mr. Martindell, who could have filed the Affidavit of Merit on time. (Id. at Docket Entry Nos. 27, 35 and 36).
Second, Defendants argue that the running of the Affidavit of Merit statute has not been tolled. (Id. ). Even though the Court has not scheduled an Affidavit of Merit conference, Defendants contend this does not toll the running of the Affidavit of Merit statute. Additionally, Defendants argue the Court's decision to stay discovery was not intended to toll the running of the Affidavit of Merit statute. Defendants contend that since it was a stay on discovery and not pleadings, Plaintiffs' argument is not applicable. ( Id., citing Cornblatt v. Barow, 153 N.J. 218 (1998)). Furthermore, Defendants assert that Plaintiffs' claim that they were lulled into inaction by Defendants is not applicable because case law states: "ignorance of the law or failure to seek legal advice will not excuse failure to meet the filing deadline." (Docket Entry No. 35 at 8, citing Hyman Zamft and Manard v. Cornell, 309 N.J.Super. 586 (App. Div. 1998)). Therefore, it was Plaintiffs' responsibility to know the law to prevent the statute from running. It is neither ...