Opinion
DOCKET NO. A-0253-12T1
04-01-2013
ROBERT C. DAVIS, Plaintiff-Appellant, v. MEADOWLANDS NISSAN, BARRY GOLDMAN, HOWARD GOLDMAN, and MARC STEINER, Defendants-Respondents, and MICHAEL MURPHY, Defendant.
Mark Law Firm, L.L.C., attorneys for appellant (Jamison M. Mark, on the brief). Morgan Melhuish Abrutyn, attorneys for respondents (Meredith Kaplan Stoma, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2803-11.
Mark Law Firm, L.L.C., attorneys for appellant (Jamison M. Mark, on the brief).
Morgan Melhuish Abrutyn, attorneys for respondents (Meredith Kaplan Stoma, on the brief). PER CURIAM
Plaintiff Robert C. Davis appeals the judge's July 27, 2012 order denying plaintiff's motion, consented to by defendants, to vacate a December 30, 2011 dismissal of his complaint against defendant Michael Murphy for lack of prosecution. Plaintiff also appeals the August 24, 2012 order denying reconsideration. The judge noted on the orders that plaintiff had failed to demonstrate exceptional circumstances for the delay between the dismissal and the motion to reinstate as required by Rule 1:13-7(a). We granted leave to appeal by order of October 9, 2012. Defendants take no position with regard to this appeal. Because the motion judge abused his discretion when denying plaintiff's motion, we reverse.
Plaintiff only lists the August 2012 order in his notice of appeal.
On June 15, 2011, plaintiff, an African American, filed a complaint based on race discrimination pursuant to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, against his employer, supervisors and colleagues. Defense counsel contacted plaintiff's counsel and informed him that his firm would be representing all defendants. Plaintiff's counsel agreed to extend the time to file an answer and defense counsel filed a stipulation to that effect on behalf of all defendants. All defendants with the exception of Murphy filed an answer. Although defense counsel had previously acknowledged service for Murphy, counsel was no longer certain that his firm was representing him. Murphy had left his employment and plaintiff was unable to serve him. The court administratively dismissed the complaint against Murphy. Counsel for the parties consulted several times regarding Murphy's representation, as well as about the exchange of discovery and mediation. Ultimately, defense counsel indicated that his firm was definitely representing Murphy and would file an answer on Murphy's behalf. The answer was rejected by the Court Clerk as the complaint had been dismissed. Defense counsel then consented to vacate the dismissal.
The motion judge denied the consent application to vacate the dismissal and reinstate the complaint against Murphy because plaintiff failed to show exceptional circumstances. R. 1:13-7(a). The judge denied reconsideration for the same reason.
"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) (citing Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257, 262 (App. Div. 2007)). This is a multi-defendant case, therefore if reinstatement is sought beyond ninety days, the exceptional circumstances test applies. Id. at 384 (citing R. 1:13-7(a)). If, however, it was a single-defendant case, only a showing of good cause would be necessary. Id. at 383-84.
We have construed the term "exceptional circumstances" as used elsewhere in Part IV of our Court Rules. In considering the term's use in the discovery extension rule, Rule 4:24–1, we likened "exceptional circumstances" to "'extraordinary circumstances.'" Rivers v. LSC P'ship, 378 N.J. Super. 68, 78 (App. Div.) (citing Vitti v. Brown, 359 N.J. Super. 40, 50 (Law Div. 2003)), certif. denied, 185 N.J. 296 (2005). We had earlier defined extraordinary circumstances as those that "'in common parlance, denote[] something unusual or remarkable.'" Ibid. (quoting Vitti, supra, 359 N.J. Super. at 50). In general, in the discovery setting, delays caused by counsel's failure to diligently prosecute the case do not present exceptional circumstances. Id. at 79-82; see also Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 474 (App. Div.) (finding no exceptional circumstances where "the delay rests squarely on plaintiff's counsel's failure to retain an expert and pursue discovery in a timely manner"), certif. granted and summarily remanded, 185 N.J. 290 (2005).
However, in this case, for a variety of reasons, we conclude that plaintiff presented exceptional circumstances warranting restoration of his complaint. First, plaintiff's conduct cannot be characterized as "'mere carelessness' or 'lack of proper diligence.'" See Hartsfield v. Fantini, 149 N.J. 611, 618 (1997) (quoting In re T., 95 N.J. Super. 228, 235 (App. Div. 1967)) (concluding such conduct did not present extraordinary circumstances justifying an untimely request for reinstatement after arbitration pursuant to Rule 4:21A); see also D.D. v. Univ. of Med. & Dentistry of N.J., __ N.J. __ (2013) (finding neither counsel's inattention nor incompetence constituted "extraordinary circumstances" sufficient to extend the notice provisions of the Tort Claims Act).
Secondly, Murphy consented to the motion to reinstate the complaint. He attempted to file an answer that was rejected due to the dismissal. See Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (noting defendants' lack of objection to reinstatement and readiness to file an answer as factors relevant when considering the court's exercise of discretion under the good cause standard).
Thirdly, Murphy does not, nor could he, claim prejudice. His lawyer acknowledged receipt of the complaint shortly after it was filed. See Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 196 (App. Div. 1985) (noting in the context of restoration after dismissal for a discovery violation that "in the absence of demonstrable prejudice to the other party it is neither necessary nor proper to visit the sins of the attorney upon his blameless client").
Lastly, the rationale for the stricter "exceptional circumstances" showing did not exist in this case. Defense counsel ultimately represented all defendants, and was amicably working with plaintiff's counsel to complete discovery and schedule mediation. The "different management problem" posed by multi-defendant litigation did not exist. Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 1:13—7 (2013).
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION