Opinion
DOCKET NO. A-6123-10T4
05-31-2012
AHERN BLUEPRINTING and ROCHDALE INSURANCE COMPANY, Plaintiffs-Appellants, v. DEBORAH L. QUICK, Defendant-Respondent.
Callahan & Fusco, LLC, attorneys for appellants (Chad L. Klasna, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2909-09.
Callahan & Fusco, LLC, attorneys for appellants (Chad L. Klasna, on the brief).
Respondent has not filed a brief. PER CURIAM
Plaintiffs Ahern Blueprinting (Ahern) and Rochdale Insurance Company (Rochdale) appeal from a July 22, 2011 order of the Law Division denying their motion, pursuant to Rule 1:13- 7, to reinstate their complaint against defendant Deborah Quick. We affirm.
By way of background, on June 5, 2007, Sean Gordon was injured in a motor vehicle collision with defendant Quick, in the course of his employment. Gordon was an employee of Ahern at the time of the accident, and Rochdale was Ahern's workers' compensation insurance provider. Gordon filed a workers' compensation claim with Rochdale, which resulted in Rochdale paying Gordon workers' compensation benefits in excess of $50,000. As a result, on June 15, 2009, Rochdale filed the underlying personal injury automobile negligence complaint against Quick, seeking to recover the costs of the workers' compensation benefits paid to Gordon by virtue of its statutory and contractual subrogation rights.
Rochdale attempted to locate and serve Quick at known addresses in the State, but was unsuccessful. Consequently, on January 8, 2010, Rochdale's complaint was dismissed for lack of prosecution due to its failure to serve defendant. Thereafter, Rochdale was able to locate defendant at an address in Columbus, Ohio, where she was served with the summons and complaint in this matter on March 5, 2010. Since then, no action was taken by Rochdale until sixteen months later when, on July 6, 2011, its substituted counsel filed a motion to reinstate plaintiff's complaint pursuant to Rule 1:13-7. In a certification in support of plaintiff's motion, counsel cited as "good cause[,]" plaintiff's inability to serve defendant prior to dismissal because she had moved out of State. The motion judge denied the relief by order of July 22, 2011, finding no legal basis to restore Rochdale's complaint.
On appeal, Rochdale argues that denial of its motion to reinstate was an abuse of discretion. We disagree.
Rule 1:13-7(a) provides that after dismissal "[i]f 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." "[T]he rule is an administrative one 'designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion' and, as we have noted, is typically used where process has not been served." Rivera v. Atl. Coast Rehab Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999) (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989)). However, "since the dismissal is without prejudice, the right of reinstatement is implicit in the rule itself . . . ." Rivera, supra, 321 N.J. Super. at 346. And although such motions to restore are to be viewed with "great liberality[,]" Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007), the ultimate determination as to whether a plaintiff has met the "good cause" standard rests within the sound discretion of the trial judge. Id. at 196.
"'Good cause' is an amorphous term, that is, it 'is difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied.'" Ibid. (quoting Del. Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002)). It is sometimes equated with the "excusable neglect" standard of Rule 4:50-1(a), Rivera, supra, 321 N.J. Super. at 348, which "has been defined as carelessness 'attributable to an honest mistake that is compatible with due diligence or reasonable prudence.'" Ibid. (quoting Mancini v. EDS, 132 N.J. 330, 335 (1993)).
Applying that standard here, we agree with the motion judge that plaintiff has fallen short of the mark. As noted, in his certification in support of his motion, plaintiff's counsel cited as "good cause" the inability to locate and serve defendant, who apparently had moved out of State. Yet, the temporal lapse in this case was not plaintiff's nine-month delay in effectuating service of process on defendant, but rather plaintiff's sixteen-month delay in moving to reinstate its complaint. And although for the first time on appeal plaintiff cites as its excuse the transfer of its case from one counsel to another, we find that even if proffered below, such reason does not amount to "good cause." Simply put, it cannot be said that the substantial delay in moving to restore plaintiff's complaint was without any fault on plaintiff's part. Absent adequate diligence or reasonable prudence by plaintiff in pursuing prosecution of its complaint, we discern no mistaken exercise of the motion court's discretion in denying reinstatement.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION