Opinion
DOCKET NO. A-6260-11T4
05-05-2014
DAVID HOHSFIELD, Plaintiff-Appellant, v. CORY CALDWELL, NEW JERSEY DEPARTMENT OF CORRECTIONS, Defendants-Respondents.
David Hohsfield, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa A. Puglisi, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and St. John.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0489-11.
David Hohsfield, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa A. Puglisi, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff David Hohsfield appeals from the May 11, 2012 denial of his motion seeking to reinstate his complaint and to serve process upon the Office of the Attorney General (OAG) in lieu of personal service to defendant. For the reasons set forth below, we affirm.
I.
The record discloses the following facts and procedural history. On January 18, 2011, plaintiff, a former inmate at the Adult Diagnostic & Treatment Center (ADTC) in Avenel, filed a complaint alleging that defendant Cory Caldwell had assaulted him in December 2010. Plaintiff mailed a copy of the summons and complaint to defendant at the ADTC, via certified and regular mail, on February 16, 2011. No individual accepted the mail with the summons and complaint.
The OAG represents that plaintiff was released from custody on June 20, 2012.
In July 2011, plaintiff sought leave to file an amended complaint, and once again sent the court papers to defendant at the ADTC by certified and regular mail on July 18, 2011. An unidentified senior corrections officer signed for the mail. Plaintiff offers no evidence that that individual was authorized to accept service on defendant's behalf.
On September 16, 2011, the court denied plaintiff's application without prejudice for failing to include an amended complaint with the motion papers, but then granted leave to amend on December 16 after plaintiff re-filed. The unopposed order directed plaintiff to "file and serve upon all counsel and all parties the amended complaint in the form attached to the moving papers within fourteen days of the date of this order," and further ordered that a copy of the order be served on all counsel and all parties within seven days of the date of the order.
On January 18, 2012, plaintiff moved for default judgment. In response, the OAG, as "potential counsel" to defendant, submitted a letter to the court asserting that, as defendant had never been properly served, the matter should be administratively terminated. On February 24, 2012, the court entered an administrative dismissal of the case.
The OAG represents that defendant has not been employed at the ADTC since March 2011. The OAG further represents that it does not represent defendant, and that it did not do so before the motion judge. The OAG stated that it only provides representation to State employees once the employee has been served, formally requests representation from the OAG, and has been approved for representation. See N.J.S.A. 59:10A-1.
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On April 27, 2012, plaintiff moved for an order reinstating the complaint and directing the OAG to accept service of process on behalf of defendant. By letter in opposition to the motion, the OAG explained that it is not permitted to accept service on behalf of any individuals and may only accept service when the State of New Jersey is named as a defendant, pursuant to Rule 4:4-4(7). On May 11, 2012, the court denied plaintiff's motion.
On appeal from that order, plaintiff contends that he has satisfied the requirement of service and therefore he is entitled to the relief sought.
"'The requirements of the rules with respect to service of process go to the jurisdiction of the court and must be strictly complied with. Any defects . . . are fatal and leave the court without jurisdiction and its judgment void.'" Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204 (App. Div. 1990)(quoting Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493, cert. denied, 344 U.S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952)). In this case, we discern fatal defects in plaintiff's service of process.
A court lacks jurisdiction over, and thus the authority to enter judgment against, a defendant who has not been properly served with process. City of Passaic v. Shennett, 390 N.J. Super. 475, 483 (App. Div. 2007); see also Berger, supra, 244 N.J. Super. at 204-05 ("Personal service is a prerequisite to achieving in personam jurisdiction[.]"). "The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served[.]" R. 4:4-4(a).
Alternatively, in personam jurisdiction may be obtained by substituted mail service under Rule 4:4-4(b)(1), but only if "it appears by affidavit satisfying the requirements of Rule 4:4-5(b) that despite diligent effort and inquiry personal service cannot be made." The filing of an affidavit of inquiry is not a mere technicality — it is a mandatory jurisdictional requirement. See R. 4:4-5(b); Pressler & Verniero, Current N.J. Court Rules, comment to R. 4:4-5 (2013). Service made by mail without satisfying the affidavit requirement under Rule 4:4-4(b)(1) is ineffective, and will not support the entry of default, unless the defendant "answers the complaint or otherwise appears in response thereto." R. 4:4-4(c).
Here, plaintiff attempted service by mail, but did not file an affidavit of diligent inquiry with the trial court, and therefore failed to establish in personam jurisdiction over defendant under Rule 4:4-4(b)(1). Nor did the court acquire jurisdiction over defendant pursuant to Rule 4:4-4(c) because defendant never filed an answer or otherwise appeared in the action. Accordingly, service of process via mail was defective and thus deprived the court of in personam jurisdiction over defendant. See, e.g., Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 293-94 (App. Div. 2000); Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 311 (App. Div. 1997). Therefore, the court properly denied plaintiff's motion to reinstate the complaint.
We also conclude that the trial court correctly denied plaintiff's motion to serve process upon the OAG in lieu of defendant. Defendant never requested legal representation from the OAG in this civil suit pursuant to N.J.S.A. 59:10A-1, and so the OAG cannot be said to have undertaken to represent him. See, e.g., In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). Furthermore, since defendant neither received proper service nor waived defective service by appearing in the matter, we disagree with plaintiff that the OAG was defendant's attorney of record in the matter. Accordingly, plaintiff's reliance on Rule 1:5-1(a), which authorizes service upon all attorneys of record of pleadings "subsequent to the original complaint," is misplaced.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION