Opinion
DOCKET NO. A-1658-12T4
04-15-2014
KATHARINE LAI, Plaintiff-Appellant, v. FENG LI, Defendant-Respondent, and CAROLINE RECORD & DISTRICT X ETHICS COMMITTEE; GIL NEILSEN, BRUCE KAPLAN & MIDDLESEX COUNTY; MANNY GERSTEIN & DISTRICT VIII ETHICS COMMITTEE; KIMBERLY SKED, LEWIS KORNGUT & ATTORNEY GENERAL OFFICE; HUI-LIN WEI, PHILIP KAUFMAN; HIGHLAND PARK BOROUGH MCA & POLICE; JOSEPH LOMBARDI & EDISON TOWNSHIP; ROBERT GOODWIN & NEW B. CITY, Defendants.
Katharine Lai, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6768-08.
Katharine Lai, appellant pro se.
Respondent has not filed a brief. PER CURIAM
Plaintiff Katharine Lai appeals from an October 12, 2012 Law Division order denying her motion for reconsideration of an August 24, 2012 order that had denied her motion to reinstate her complaint against defendant Feng Li and restore the case to the active trial list. Because we conclude that plaintiff's brief and appendix are so fatally deficient as to preclude meaningful review, we exercise our discretion to dismiss the appeal.
Plaintiff is pro se and her brief is disorganized and virtually incomprehensible. However, we glean the following facts and procedural history from plaintiff's earlier unsuccessful appeal of the dismissal of her case against various other defendants.
This case began as a landlord-tenant suit filed by plaintiff in 2006 against her tenant, [Hui-Lin] Wei. That suit turned on a dispute over the amount of rent due under the lease of a commercial property in Highland Park. In a written opinion dated June 21, 2006, Judge Hyland did not credit plaintiff's allegations about the terms of the lease, rejected plaintiff's claim that Ms. Wei forged portions of the lease, and dismissed plaintiff's eviction complaint. After her landlord-tenant case was dismissed, plaintiff allegedly made phone calls to Wei's attorney, Philip Kaufman, threatening to shoot Kaufman and his client; plaintiff was arrested in 2007 for making terroristic threats. In turn, she unsuccessfully requested that the Edison municipal prosecutor file charges against Wei for forgery and other offenses. When heFinding that plaintiff's appellate arguments lacked sufficient merit to warrant extended discussion, Rule 2:11-3(e)(1)(E), we affirmed the trial court's orders. Lai, supra, slip op. at 6-7.
declined to do so, plaintiff filed a pro se criminal complaint against Wei in municipal court. After a hearing on March 19, 2008, the municipal judge entered a directed verdict of not guilty, characterizing plaintiff's filing as an "abuse" of the judicial process.
Plaintiff also filed a series of complaints in federal court against Wei, Kaufman, plaintiff's own former attorney, Feng Li, the Borough of Highland Park, the New Jersey Attorney General and others. Those lawsuits were dismissed as frivolous. In a lengthy written opinion issued on June 26, 2007, Judge Debevoise found that plaintiff had repeatedly filed frivolous lawsuits despite the court's repeated imposition of sanctions for doing so. He therefore entered an order on June 26, 2007, requiring plaintiff to obtain the court's prior review and permission before filing any future federal court complaints in the District of New Jersey.
Undeterred, in April 2008, plaintiff filed a State court complaint in Morris County, against Li, Kaufman, Wei, Highland Park Borough, Edison Township, New Brunswick, and several other defendants, raising essentially the same claims, and alleging violations of her civil rights under 42 U.S.C.A. §§ 1981 and 1983, the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and assorted other statutory and common law causes of action. That complaint was transferred to Middlesex County, where Judge Bergman eventually granted defendants' summary judgment motions dismissing the complaint, and awarded counsel fees to several defendants based on plaintiff's
filing of a frivolous lawsuit. Those orders gave rise to this appeal.
Plaintiff has provided us with the transcript of Judge Bergman's oral opinion of February 4, 2011, giving his reasons for granting several of the dismissal motions. He discussed as background plaintiff's 2007 arrest for making threats and her subsequent § 1983 lawsuit against Highland Park and other defendants. The judge found no proof that plaintiff was acquitted of the charges against her, which would be a prerequisite to her cause of action for false arrest and related claims. He found she produced no proof of a policy or custom of the Borough that violated her rights, and no evidence in support of her discrimination claims. He reached the same conclusion with respect to Edison Township. He also found that plaintiff failed to file a Notice of Tort Claim with respect to any of her common law claims, N.J.S.A. 59:8-8, and she failed to file an opposing statement of material facts on the summary judgment motions, as required by Rule 4:46-2(b).
The judge also dismissed the complaint against Wei, finding that she was not a State actor or a public employee, and finding that plaintiff produced no proof of any of the elements of a negligence cause of action. Finally, he found that the City of New Brunswick and its municipal prosecutor were entitled to prosecutorial immunity; plaintiff did not file a Notice of Tort Claim against the City or its employees, and she produced no proof that they committed any constitutional violations. The judge
also considered plaintiff's complaint against Kaufman, and found no proof of any cognizable claim.
[Lai v. Li, No. A-3960-10 (May 1, 2012) (slip op. at 2-6).]
When plaintiff's complaint was first transferred to Middlesex County, it was stayed pending disposition of the pending criminal complaint against her. By order dated September 11, 2009, plaintiff was convicted of criminal mischief, N.J.S.A. 2C:17-3a(1).
Plaintiff's appellate brief confines her present appeal to her dispute with her former attorney Li, who plaintiff appears to blame for the dismissal of her earlier landlord-tenant action. In her appendix, plaintiff provides a February 18, 2011 order of Judge Bergman, denying Li's motion for summary judgment dismissing plaintiff's complaint for failure to provide an Affidavit of Merit. The order indicates that Li's summary judgment motion was "denied without prejudice as moot; the matter is closed as previously dismissed administratively by the court." Plaintiff has not provided the dismissal order, nor are we able to glean from the sparse record presented the precise reason that the case against Li had been administratively dismissed.
At some point, plaintiff moved to reinstate her complaint against Li and restore that matter to the active trial list. Plaintiff has not furnished a copy of her motion, nor are we able to ascertain the grounds upon which she sought reinstatement of the complaint. In any event, Judge Bergman denied the motion on August 24, 2012, indicating on the order that "[n]o good cause to reinstate is provided."
Plaintiff moved for reconsideration, although she again fails to furnish us with the motion or the basis upon which reconsideration was requested. On October 12, 2012, Judge Bergman denied the motion, noting that "[t]here is no basis provided for reconsideration." This appeal followed.
On appeal, plaintiff's legal argument lacks a point heading, and consists entirely of the following:
See Rule 2:6-2(a)(5).
From my submitted appendix everybody can see that Judge Bergman against his own order of 02/18/11 and he even denied my motion for reconsideration based on [Rule] 4:50-1. I have every right to ask Appellate Court to grant my request as my above Statement of Facts said.
Rule 2:6-1(a)(1) requires the appendix prepared by the appellant to include "the complete pretrial order, if any, and the pleadings." Failure to include any item essential to the decision hinders appellate review. Johnson v. Schragger, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001). Our refusal to address an issue where the appellant's appendix failed to include the final order dismissing her claim has been affirmed by the Supreme Court. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).
Here, the limited record supplied by plaintiff indicates that her complaint against Li was administratively dismissed. Rule 1:13-7 governs the administrative dismissal of civil actions for lack of prosecution. It is an administrative rule that is "'designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion.'" Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007) (quoting Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989)).
Rule 1:13-7(a) further provides that, after dismissal,
reinstatement of an action against a single defendant may be permitted on submission of a consent order vacating the dismissal and allowing the dismissed defendant to file an answer, provided the proposed consent order is accompanied by the answer for filing, a case information statement, and the requisite fee. If 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. In multi-defendant actions in which at least one defendant has been properly served, the consent order shall be submitted within 60 days of the order of dismissal, and if not so submitted, a motion for reinstatement shall be required. The motion 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 . . . .
Since plaintiff has failed to include the dismissal order in her appendix, we are unable to ascertain why the complaint was dismissed as to Li, or the date of the dismissal. Subsequently, she moved to vacate the dismissal. On August 24, 2012, the motion judge determined that plaintiff failed to show good cause to reinstate. Because plaintiff has not provided us with her original motion to vacate the dismissal, opposition to it, or any transcript of the motion hearing if one was held, we have no basis by which to determine whether she demonstrated good cause. Plaintiff has similarly failed to provide us with her unsuccessful motion for reconsideration, so that we are unable to ascertain whether she satisfied the standard for reconsideration under Rule 4:49-2. We have before us only the statements made in plaintiff's brief which are outside the record. Due to these deficiencies, we cannot adequately review the record and accordingly we are constrained to dismiss plaintiff's appeal.
It appears that the judge applied the "good cause" standard, rather than the more stringent showing of "exceptional circumstances" for the reinstatement of a complaint as to a defendant in a multi-party action, where the motion for reinstatement is made more than ninety days after the order of dismissal. R. 1:13-7(a).
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Dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION