Opinion
DOCKET NO. A-2624-14T4
03-29-2016
MARC A. JORDAN, Plaintiff-Appellant, v. STATE OF NEW JERSEY, OFFICE OF THE ATTORNEY GENERAL, ACTING ATTORNEY GENERAL JOHN J. HOFFMAN, MONMOUTH COUNTY PROSECUTOR'S OFFICE, MONMOUTH COUNTY PROSECUTOR'S OFFICE PROSECUTOR CHRISTOPHER J. GRAMICCIONI, FORMER MONMOUTH COUNTY PROSECUTOR'S OFFICE PROSECUTOR JOHN KAYE, FORMER MONMOUTH COUNTY PROSECUTOR'S OFFICE ASSISTANT PROSECUTOR THOMAS V. CAMPO and FORMER MONMOUTH COUNTY PROSECUTOR'S OFFICE PARALEGAL NANCY SAUTER, Defendants-Respondents.
Marc A. Jordan, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa A. Puglisi, Assistant Attorney General, of counsel; Brian P. Wilson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3463-13. Marc A. Jordan, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondents (Lisa A. Puglisi, Assistant Attorney General, of counsel; Brian P. Wilson, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Marc A. Jordan, an inmate at East Jersey State Prison, appeals from a December 19, 2014 order denying his motion to reinstate his complaint. We affirm.
Plaintiff filed his complaint in the Law Division on September 9, 2013. The complaint sought compensatory and punitive damages, and alleged that wiretap communications to which plaintiff was a party were unlawfully disseminated during a grand jury investigation in the late 1990's. The State of New Jersey, the Office of Attorney General, Acting Attorney General John J. Hoffman, the Monmouth County Prosecutor's Office ("MCPO"), MCPO Prosecutor Christopher J. Gramiccioni, former MCPO Prosecutor John Kaye, former MCPO Prosecutor Thomas V. Campo, and former MCPO paralegal Nancy Sauter (collectively, the "State defendants"), along with several other persons, were named as defendants.
Plaintiff moved for summary judgment on October 23, 2013. The State defendants opposed the motion on the basis that service of the complaint by regular mail to a Deputy Attorney General (DAG) at the Attorney General's Office, and to Kaye and Campo by the same method, was insufficient under Rule 4:4-4. Judge Dennis R. O'Brien denied the motion on December 6, 2013. In an oral opinion, the judge found that the State defendants had not been properly served with the complaint, and that plaintiff otherwise failed to establish any basis to grant summary judgment in his favor.
On December 13, 2013, plaintiff sent a letter to the Clerk of the Monmouth County Superior Court requesting that default be entered against defendants pursuant to Rule 4:43 because they failed to answer the complaint within thirty-five days. On December 26, the Clerk's Office responded with a deficiency notice indicating that default could not be entered because "[n]o proof of service has been filed or is not certified . . . ." On January 23, 2014, plaintiff sent the Clerk's Office "Proof of Service," and on February 5 he again requested that the Clerk enter default against defendants pursuant to Rule 4:43. On February 10, the Clerk's Office sent plaintiff a second deficiency notice advising him that the proof of service did not comport with the Rules of Court. Plaintiff's complaint was thereafter administratively dismissed on March 21, 2014, for lack of prosecution.
Plaintiff later moved to reinstate the complaint and correct the Clerk's mistake in not entering default. Judge O'Brien denied the motion on December 19, 2014. In his written statement of reasons, after reciting the prior history of the matter, the judge explained:
Plaintiff has failed to include the motion or any affidavit or other documentation supporting the motion in his appendix. This contravenes Rule 2:6-1(a)(1), which requires that the appendix contain those parts of the record "essential to the proper consideration of the issues." --------
9. This [c]ourt has not been provided with any documentation that [d]efendants were properly personally served with the complaint pursuant to the Court Rules. See R. 4:4-4(a)(1).
10. Plaintiff has been repeatedly advised that he has not secured [] personal service on [] [d]efendants, and thus entry of default is improper.
11. [Rule] 1:13-7 provides [that] a motion for reinstatement will be granted only once the requisite documentation is submitted and [p]laintiff must demonstrate exceptional circumstances.
12. Plaintiff has failed to provide an [a]ffidavit of [s]ervice, an [a]nswer, or a [c]onsent [o]rder nor has good cause or exceptional circumstances been shown.
Plaintiff appeals, arguing that the State defendants were properly served with the summons and complaint and, even if they were not, "the due process requirement regarding notice was satisfied." We disagree.
"Our review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard." Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App. Div. 2011) (citations omitted). In our review, we are not bound by the Law Division's legal conclusions or its "'interpretation of the law and the legal consequences that flow from established facts . . . .'" Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ).
Rule 1:13-7(a) allows the court to issue a notice informing a party that dismissal of a pending action, which has languished for four months without complying with "required proceeding[s]," will occur in sixty days. Apt to this matter, one "required proceeding" is filing proof the complaint had been served upon the defendant. R. 1:13-7(b)(1). Once dismissed, a complaint may be reinstated. R. 1:13-7(a). To do so, a plaintiff must file a motion, which "shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted only on a showing of exceptional circumstances." R. 1:13-7(a).
Rule 1:13-7 was "designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion." Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989). The rule seeks "to balance the institutional needs of the judiciary against the principle that a just result should not be forfeited at the hands of an attorney's lack of diligence." Baskett, supra, 422 N.J. Super. at 379. Noting the rule is an administrative tool to control the court's docket, a request for reinstatement "should be viewed with great liberality." Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007).
Here, plaintiff's failure to include the reinstatement motion in the appendix hampers our review. We are unable to ascertain with any degree of certainty when the motion was filed. Consequently, it is unclear whether plaintiff's motion for reinstatement of his action is governed by the good cause standard, or, alternatively, whether he is required to show "exceptional circumstances." R. 1:13-7(a). "'Good cause' is an amorphous term, that is, it is difficult of precise delineation." Ghandi, supra, 390 N.J. Super. at 196 (citation omitted). Generally, good cause "'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)).
Regardless of which standard applies, we emphasize that "where the complaint has been dismissed due to [the] plaintiff's failure to serve the defendant, the purpose of Rule 1:13-7(a) is advanced where [the] plaintiff successfully serves the defendant before filing a motion to reinstate the complaint." Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257, 264 (App. Div. 2007) (citing Mason, supra, 233 N.J. Super. at 267). "The court can thus be assured, before granting the motion, [] the defendant has been served and the case can proceed." Ibid.
The record in the present case supports the motion judge's finding that plaintiff was repeatedly advised of his failure to properly serve the State defendants. Personal service of the summons and complaint is the norm under Rule 4:4-4(a)(1). As the State correctly points out, this service requirement generally applies to all individuals, governmental employees or otherwise, and also to public bodies other than the State of New Jersey. See R. 4:4-4(a)(8). In contrast, service on the State of New Jersey is permitted by "registered, certified, or ordinary mail of a copy of the summons and complaint or by personal delivery of a copy of the summons and complaint to the Attorney General or to the Attorney General's designee named in a writing filed with the Clerk of the Superior Court." R. 4:4-4 (a)(7). The rule further provides that "[n]o default shall be entered for failure to appear unless personal service has been made under this paragraph." Ibid.
Here, plaintiff does not dispute that he merely sent, via ordinary mail, a copy of the summons and complaint to a Deputy Attorney General who was not designated by the Attorney General to accept service. He similarly served Kaye and Campo by ordinary mail, and failed completely to serve the other named defendants. Accordingly, plaintiff failed to demonstrate compliance with Rules 4:4-4(1) and (7), despite repeated admonitions.
Simply stated, plaintiff did not cure the defective service that led to the dismissal of his complaint, nor did he make any effort to do so. For this reason, we discern no abuse of discretion in the trial court's denial of plaintiff's reinstatement motion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION