Opinion
DOCKET NO. A-3069-12T3
03-10-2014
JUAN SOTO, Plaintiff-Appellant, v. PETER BEDNARCZUK and BEATA LUBIEJEWSKA, Defendants, and FAUSTO E. MANCERO, JR., Defendant-Respondent.
Thomas L. Bell argued the cause for appellant (Goldstein, Ballen, O'Rourke & Wildstein, attorneys; Mr. Bell, of counsel; David L. Kowzun, on the brief). Kurt J. Trinter argued the cause for respondent (Styliades, Jackson and Burghardt, attorneys; Sungkyu Lee, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Haas.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1280-11.
Thomas L. Bell argued the cause for appellant (Goldstein, Ballen, O'Rourke & Wildstein, attorneys; Mr. Bell, of counsel; David L. Kowzun, on the brief).
Kurt J. Trinter argued the cause for respondent (Styliades, Jackson and Burghardt, attorneys; Sungkyu Lee, on the brief). PER CURIAM
Plaintiff Juan Soto was involved in a multi-car collision accident on June 23, 2009, when the car he was driving was struck from behind by a car driven by defendant Peter Bednarczuk, whose car was in turn rear-ended by a car driven by defendant Fausto E. Mancero, Jr. On March 14, 2011, plaintiff filed a civil action against defendants seeking compensatory damages for injuries he allegedly sustained in the accident.
Plaintiff did not have any difficulty serving Bednarczuk with the summons and complaint in this action. However, despite several good faith attempts, plaintiff was unable to locate Mancero's whereabouts. On September 30, 2011, the court administratively dismissed plaintiff's cause of action against Mancero under Rule 1:13-7(a) for lack of prosecution. Bednarczuk and Lubiejewska discovered the case's procedural posture when they deposed plaintiff in January 2012.
On March 19, 2012, plaintiff was finally able to serve Mancero with process by sending him a copy of the summons and complaint to a residence in Wayne, New Jersey via certified mail. Plaintiff thereafter filed a motion to vacate the Rule 1:13-7(a) administrative dismissal. By order dated August 10, 2012, the court denied plaintiff's motion, stating plaintiff had not presented evidence of "exceptional circumstances required to vacate dismissal of this matter . . . ." The court also denied plaintiff's timely motion for reconsideration in an order dated January 11, 2013, stating: "Movant has not provided a basis for this court to reconsider its decision denying movant's original motion vacating the dismissal of this matter under R. 1:13-7."
Plaintiff now appeals, arguing the trial court erred when it found plaintiff did not present exceptional circumstances to warrant vacating the administrative dismissal of his case against Mancero. We disagree and affirm.
We review the trial court's decision to deny a motion to reinstate a complaint that has been administratively dismissed for lack of prosecution pursuant to Rule 1:13-7(a) under a mistaken exercise of discretion standard. Baskett v. Cheung, 422 N.J. Super. 377, 382-383 (App. Div. 2011). We must determine whether the court's decision was made "without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
The principal purpose underlying Rule 1:13-7 is to clear the docket of cases in which a plaintiff has failed to perform certain acts required to prosecute a civil case diligently. Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 1:13-7 (2014). Rule 1:13-7 permits reinstatement of a civil complaint that has been administratively dismissed for lack of prosecution when "good cause" is 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) (emphasis added). The exceptional circumstances standard also applies to cases like this in which multi-defendants are involved. Baskett, supra, 422 N.J. Super. at 382-83.
Plaintiff argues he established exceptional circumstances because Mancero was constructively aware of the suit when his automobile insurance carrier received actual copies of the pleading. Plaintiff's counsel also acted with reasonable dispatch and performed all required due diligence when he pursued all avenues for discovering Mancero's whereabouts. Finally, plaintiff argues Mancero was not prejudiced by the delay. We disagree this record supports a finding of "exceptional circumstances."
Both sides have cited and relied on unpublished opinions in support of their respective positions. We recognize how easily available unpublished opinions have become due to the internet. We caution the bar, however, that until the Supreme Court decides otherwise, unpublished opinions lack precedential value, Rule 1:36-3, and therefore its analytical utility is at best marginal.
We have defined the term "exceptional or extraordinary circumstances" as denoting "something unusual or remarkable." Rivers v. LSC Partnership, 378 N.J. Super. 68, 78 (App. Div. 2005) (internal citations omitted) certif. denied, 185 N.J. 296 (2005). It requires much more than the ordinary difficulties associated with locating a party in an automobile accident, especially when the party is a registered owner of the vehicle or has a driver's license. Plaintiff did not take any action to pursue other avenues of service of process permitted under our rules of civil practice. See R. 4:4-4. We discern no legal basis to find the trial court abused its discretionary authority in denying plaintiff's motion to reinstate the case against Mancero.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION