MARK NEWTON VS. CITY OF NEWARK (L-6777-11, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0764-14T2

MARK NEWTON, ANDREA NEWTON,
QADIR NEWTON and QAWI NEWTON,

Plaintiffs-Appellants,

v.

CITY OF NEWARK, NEW JERSEY,

Defendant-Respondent,

and

MAYOR COREY BOOKER, WESTWARD
COUNCILMAN RONALD RICE, JR.,
ANNETTE WILLIAMS NEWARK POLICE DEPT.
DIRECTOR, SAMUEL DIMEO, CHIEF SHEILAH
COLEY, CAPT. "DOE" CLARK, CAPT. SETEVEN
YABLONSKY, LT. FELIX COMLON, LT. CHARLES
ZISER, LT. STEVEN YURIK I.D. NO. 6480, LT.
WILLIAM MEHALARIS I.D. NO. 7131, LT.
CARLOS FIGUEROA I.D. NO. 6522, LT.
DARRYL MARTIN I.D. NO.7462, LT.
FREDDIE HILL, SGT. RAZOHN EURE, SGT.
"ROE" LOPEZ, SGT. FRANK ROSSI I.D. NO.
6627, SGT. ANTHONY GIBSON I.D. NO 7121,
SGT. JOAO CARVALHO I.D. NO. 9303, SGT.
"DOE" WHITTAKER, SGT. "DOE" PEREIRA,
SGT. SCOTT SAYRE, SGT. ELLEN MCMILLAN
I.D. NO. 6529, SGT. AL TARIQ DUNSTON,
MATTHEW MILTON I.D. NO. 7992, DET. KARIMA
HANNIBAL I.D. NO. 9058, DET. MIGUEL
SANABRIA, JR. I.D. NO. 8013, DET. "DOE"
MARQUES, DET. "DOE" WEBER, DET. MARK
OLMEDA I.D. NO. 8013, DET. MARK SUREZ,
DET. GERARD PIACENZA, DET. LARRY COLLINS,
DET. JOSE PEREZ, DET. ALOMA WRIGHT, P.O.
TIMOTHY HART, P.O. MARIBEL SANTIAGO I.D.
NO 9900, P.O. EDWIN GONZALEZ, P.O. DARELL
GRAHAM, P.O. GEORGE MENDEZ I.D. NO. 6490,
P.O. "DOE" BUMANLAG, P.O. CARLOS ORBE,
P.O. "DOE" FIGUEROA, P.O. "DOE" MARQUES,
P.O. "DOE" GONZALEZ, P.O. "DOE" ZAMORA,
P.O. TREMAYNE PHILLIPS, I.D. NO. 9891,
P.O. JOSEPH WATSON I.D. NO. 6497, P.O.
WILLIE WINNS I.D. NO. 7282, P.O. ANDREE
NELSON I.D. NO. 7266, P.O. "DOE"
HANCOCK I.D. NO. 7593, P.O. "DOE" RICH,
I.D. NO. 1382, P.O. "DOE" MURPHY, I.D. NO.
2310, THE NEWARK FIRE DEPT., CHIEF JAMES
STEWART, DEPT. OF NEIGHBORHOOD SERVS.,
DIV. OF CODE ENFORCEMENT EMPLOYEES, AMOS
CRUDUP, NORMAN DAIS, and CITY OF NEWARK,
DIV. OF WATER,

Defendants.
_________________________________________

Argued August 15, 2017 – Decided August 22, 2017

Before Judges Manahan and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-
6777-11.

Mark Newton, appellant pro se.

Steven F. Olivo, Assistant Corporation Counsel,
argued the cause for respondent (Kenyatta K.
Stewar, Acting Corporation Counsel, attorney;
Mr. Olivo, of counsel and on the brief.

PER CURIAM

Plaintiffs Mark Newton, Andrea Newton, Qadir Newton, and Qawi

Newton (collectively plaintiffs) appeal from a July 25, 2014 Law

2 A-0764-14T2
Division order denying an application seeking restoration of their

complaint. We affirm.

We summarize the following facts and procedural history

relevant to our determination from the limited record. Plaintiffs

filed the complaint on August 16, 2011, in the Law Division. The

complaint was dismissed on March 2, 2012, by the Law Division's

Central Processing Unit as non-conforming. Plaintiffs filed a

subsequent complaint and Order to Show Cause (OTSC) on May 17,

2012, which was hand-delivered to defendant City of Newark (City).

The City appeared before the court on May 18, 2012, regarding

plaintiffs' complaint, specifically plaintiffs' conflict with

their neighbors.1 Consequently, the court reinstated the complaint

and set the OTSC returnable on May 31, 2012.

The City filed an answer to the complaint and OTSC on May 24,

2012. On June 13, 2012, the court convened a plenary hearing, at

which plaintiffs Mark Newton and Andrea Newton testified. 2 On

August 24, 2012, the court denied plaintiffs' OTSC, noting in its

statement of reasons that even if the allegations against defendant

Newark Police Department were proven, there would be no compensable

damages available to plaintiffs. When no further action was taken

1
Plaintiffs no longer reside at the property.
2
A transcript of the proceeding has not been provided to this
court.

3 A-0764-14T2
after issuance of the August 24 order, the complaint was

administratively dismissed on November 3, 2012.

On November 23, 2012, plaintiffs moved to reinstate the

complaint without serving the motion on the City. The court

granted plaintiffs' motion on December 11, 2012. As plaintiffs

did not serve the City with the order, the City did not file a

responsive pleading to the reinstated complaint. This resulted

in an additional administrative dismissal on April 13, 2013.

On June 13, 2013, plaintiffs again moved to reinstate the

complaint. The court granted plaintiffs' motion on July 12, 2013.

In an accompanying letter to plaintiffs and the City, the court

stated that if plaintiffs continually failed to serve orders on

opposing parties or to file proof of service pursuant to Rule 4:4-

7, the complaint would be dismissed.

On October 22, 2013, plaintiffs filed a motion seeking both

reinstatement of the complaint and a judgment by default pursuant

to Rule 4:43-2. By letter dated November 7, 2013, the City

informed the court that they never received the motion papers.

The City's counsel submitted a certification in opposition to the

motion stating that the City was not properly served. On November

22, 2013, the court, finding improper service by plaintiffs on the

City, denied plaintiffs' motion.

4 A-0764-14T2
 On June 23, 2014, plaintiffs again moved to reinstate the

complaint. On July 25, 2014, the court denied the motion. In a

letter to plaintiffs and the City, the court stated that it "denied

the motion because it is far from clear to the court that the

[City has] been properly served." This appeal followed.

Plaintiffs raise the following arguments on appeal:

POINT I

ALL DEFENDANTS THROUGH THEIR COUNSEL NMCC
CONTUMACIOUSLY REFUSED TO FILE THEIR CIVIL
CASE INFORMATION STATEMENT AND ANSWER WITH THE
CLERK OF THE LAW DIVISION AND FOR THIS REASON
THE ADMINISTRATIVE DISMISSALS ENTERED BY THE
CLERK OF THE LAW DIVISION MUST BE VACATED AND
THE MATTER RESTORED TO THE ACTIVE TRIAL
CALENDAR.

[A.] The Law Division Judge James
Rothschild Jr. Committed Plain And
Reversible Error By Deliberately
And [Purposely] Refusing To
Transmit Defendants' Answer To The
Clerk Of The Law Division Or
Otherwise Directing His Staff To
File Defendants' Answer With The
Clerk Of The Law Division And For
This Reason The Administrative
Dismissals Entered By The Clerk Of
The Law Division Must Be Vacated And
The Matter Restored To The Active
Trial Calendar.

POINT II

DESPITE PLAINTIFFS HAVING FILED A
"CERTIFICATION" PURSUANT TO R. 4:4-7 IN JUNE
2013[, CLEARLY] DEMONSTRATING THAT SERVICE OF
PLAINTIFFS' COMPLAINT HAD BEEN MADE UPON
DEFENDANTS[,] THE CLERK OF THE LAW DIVISION

5 A-0764-14T2
CONTINUED ISSUING ORDERS THAT
ADMINISTRATIVELY DISMISSED PLAINTIFFS'
COMPLAINT WHICH CONDUCT FURTHER VIOLATED
PLAINTIFFS' RIGHTS TO DUE PROCESS OF LAW AND
FOR THIS REASON AS A MATER OF LAW[,] THE ORDER
ENTERED BY THE CLERK ADMINISTRATIVELY
DISMISSING PLAINTIFFS' COMPLAINT AS WELL AS
THE ORDER ENTERED BY THE LAW DIVISION REFUSING
TO RESTORE PLAINTIFFS' COMPLAINT MUST BE
REVERSED.

[A.] Thereafter The "Wholly
Improper And Improvident
Administrative Dismissal Of
Plaintiffs' Complaint" In November
2013, The Clerk Of The Law Division
Failed To Provide Plaintiffs With A
Written Notice [Advising] Of The
Dismissal Which Conduct Violated
The Mandates Of R. 1:13-7(A) As Well
As Plaintiffs' Rights To Due Process
Of Law And For This Reason As A
Matter Of Law[,] The Order Entered
By The Law Division Refusing To
Restore Plaintiffs' Complaint To
The Active Trial Calendar Must Be
Reversed.

POINT III

THE LAW DIVISION JUDGE JAMES ROTHSCHILD JR.
COMMITTED PLAIN AND REVERSIBLE ERROR BY
DENYING PLAINTIFFS' APPLICATION SEEKING THE
ENTRY OF A DEFAULT REGARDING ALL DEFENDANTS
AND REFUSING TO REINSTATE PLAINTIFFS'
COMPLAINT "NUN[C] PRO TUNC" AS A DIRECT RESULT
OF JUDGE ROTHSCHILD'S REFUSAL TO TRANSMIT
DEFENDANTS ANSWER TO THE CLERK OF THE LAW
DIVISION FOR FILING AND DEFENDANTS' COUNSELS'
CONTUMACIOUS REFUSAL TO FILE THE CASE
INFORMATION STATEMENT AND ANSWER DIRECTLY WITH
THE DEPUTY CLERK OF THE LAW DIVISION IN
ACCORDANCE WITH R. 1:5-6(A)(1).

6 A-0764-14T2
 Having considered the record before us and in application of

our standard of review, we conclude that plaintiffs' arguments

lack sufficient merit as to require discussion in a written

opinion. R. 2:11-3(e)(1)(E). We add only the following.

We review an order denying reinstatement of a complaint under

the abuse of discretion standard. Weber v. Mayan Palace Hotel &

Resorts, 397 N.J. Super. 257, 262 (App. Div. 2007). While the

"abuse of discretion standard defies precise definition," we may

find an abuse of discretion when a decision is "made without a

rational explanation, . . . rest[s] on an impermissible basis,"

or was "based upon a consideration of irrelevant or inappropriate

factors." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)

(quoting Achacoso-Sanchez v. Immigration & Naturalization Serv.,

779 F.2d 1260, 1265 (7th Cir. 1985); State v. Baynes, 148 N.J.

434, 444 (1997)).

Rule 1:13-7(a) permits reinstatement of a complaint "on

motion for good cause shown." In Ghandi v. Cespedes, we explained:

Good cause is an amorphous term, that is,
it is difficult of precise delineation. Its
application 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. Rule 1:13-7(a)
is an administrative rule designed to clear
the docket of cases that cannot, for various
reasons, be prosecuted to completion.
Dismissals under the rule are without

7 A-0764-14T2
 prejudice. R. 1:13-7(a). Accordingly, the
right to reinstatement is ordinarily routinely
and freely granted when plaintiff has cured
the problem that led to the dismissal even if
the application is made many months later.

[390 N.J. Super. 193, 196 (App. Div. 2007)
(citations and internal quotation marks
omitted).]

Here, despite being presented with the opportunity on several

occasions to "cure the problem" that led to the administrative

dismissals of the complaint, plaintiffs engaged in a pattern of

obstinate refusal to abide by the notice requirements per Rule

1:6-2(a) and Rule 1:6-3(a)(c), and the service requirement of Rule

4:4-4. Further, plaintiffs chose to ignore the advisement provided

by the court that their failure to abide by the notice and service

requirements would continue to result in dismissal of the complaint

after its reinstatement.

Given the above, we conclude that the court not only did not

abuse its discretion, it exercised sound discretion in denying

reinstatement of the complaint.

Affirmed.

8 A-0764-14T2