Opinion
DOCKET NO. A-4073-11T2
01-13-2014
GINA LOULI, Plaintiff-Appellant, v. BARANDA RESTAURANT, Defendant, and JABER FIRAS, Defendant-Respondent.
Zareh H. Beylerian, attorney for appellant. White & McSpedon, P.C., attorneys for respondent (Sally A. Monteleone, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3876-10.
Zareh H. Beylerian, attorney for appellant.
White & McSpedon, P.C., attorneys for respondent (Sally A. Monteleone, on the brief).
The opinion of the court was delivered by ACCURSO, J.A.D.
Plaintiff Gina Louli appeals from a March 2, 2012 order denying her motion to reinstate her complaint dismissed pursuant to Rule 1:13-7. We reverse.
Plaintiff alleges she sustained injuries in a fall at Baranda Restaurant on August 21, 2008. Shortly before expiration of the limitations period, a complaint was filed on her behalf on August 4, 2010 against the restaurant and its alleged owner, Jaber Firas. Service, however, was not made on either defendant until six months later on February 2, 2011. Plaintiff filed her proof of service on February 9, 2011. Defendant Firas filed and served an answer five days later on February 14, 2011. Firas simultaneously served plaintiff's counsel with a demand for answers to form interrogatories, supplemental interrogatories, authorizations, as well as a notice to produce documents and a notice for plaintiff's deposition.
Although initially accepting Firas's answer for filing, the civil division returned it to Firas's counsel on February 24, 2011 advising that a "motion is required in order to file an answer." The civil division wrote to Firas's counsel on March 11, 2011 advising that it had processed a refund of the $135 filing fee and a check in that amount would be forwarded from Trenton within fourteen days. Prompting those actions was the "court initiated dismissal" of the action on February 18, 2011 pursuant to Rule 1:13-7. The action was likewise dismissed as to Baranda Restaurant on September 9, 2011.
Plaintiff's counsel did not move to vacate the dismissals and reinstate the complaint until February 15, 2012. Counsel represented that the failure to timely pursue the action was entirely due to the failure of his firm to have adequate procedures in place to track filed complaints. Although the motion was unopposed, the court denied it finding that plaintiff had failed to demonstrate exceptional circumstances pursuant to Rule 1:13-7(a).
While we do not condone plaintiff's counsel's failure to timely prosecute the action or the long delay in moving to reinstate the complaint, we conclude that the denial of plaintiff's motion to reinstate the action was a mistaken exercise of discretion. Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257, 262 (App. Div. 2007). We do not quarrel with the trial judge's conclusion that plaintiff failed to demonstrate the exceptional circumstances required by Rule 1:13-7(a). A review of the procedural history, however, reveals that the initial dismissal under Rule 1:13-7 was improvident, and thus reinstatement should have been allowed, notwithstanding counsel's long delay in requesting that action.
As often noted, Rule 1:13-7 is our docket-clearing tool "designed 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 v. Kwokleung Cheung, 422 N.J. Super. 377, 379 (App. Div. 2011). It is an administrative rule "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).
Here, although there was undoubtedly a delay in service, proof of service had already been filed as well as an answer before the court-initiated dismissal of the action pursuant to the Rule. Accordingly, far from clearing the docket of a case that plaintiff was failing to prosecute diligently, the court-initiated dismissal derailed a case that was then effectively underway.
We think it obvious that the court-initiated dismissal in this instance was thus improvident, at best. See Rivera v. Atl. Coast Rehab. & Health Care Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999). Taking into account the fifteen days allowed for service of the summons, Rule 4:4-1, and assuming that the notice of dismissal was sent four months thereafter, it would appear that both the proof of service and the answer were filed within sixty days of that date, and dismissal was thus unwarranted under Rule 1:13-7(c)(1) and (2). In any event, a court considering a motion to reinstate should consider not only the context of the circumstances surrounding the dismissal, but also the purpose of Rule 1:13-7(a). Rivera, supra, 321 N.J. Super. at 346.
Doing so here convinces us that the failure to reinstate was a mistaken exercise of discretion. Defendants had been on notice of the accident since shortly after its occurrence by letter from plaintiff's attorney. Defendant Firas's carrier had appointed counsel who answered the complaint within days of service. Counsel had filed an answer and served discovery before the court-initiated dismissal for failure to prosecute. Although the improvident dismissal does not excuse plaintiff's counsel's long delay in moving to reinstate, Firas did not oppose the motion and was obviously ready to defend the case.
We endorse the need to promptly move cases as integral to our mission to justly resolve disputes. See Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 406 (App. Div. 1986). Here, however, employment of the docket-clearing rule did not rid the docket of a case not pursued, it derailed pursuit of a case already underway. Accordingly, we reverse.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION