JUAN PASTRANA VS. JOSEPH CORONATO (L-1305-15, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-5346-16T1

JUAN PASTRANA,

Plaintiff-Appellant,

v.

JOSEPH CORONATO, GLENN MILLER,
and OCEAN COUNTY, a New Jersey
municipal corporation,

Defendants-Respondents.
_______________________________

Submitted April 23, 2018 – Decided July 18, 2018

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
1305-15.

George J. Cotz, attorney for appellant.

Berry, Sahradnik, Kotzas & Benson, PC,
attorneys for respondent (Mary Jane Lidaka,
on the brief).

PER CURIAM

Plaintiff Juan Pastrana appeals from the May 28, 2017 order

denying his motion to reinstate his complaint, which had been

administratively dismissed pursuant to Rule 1:13-7 over a year.
He also appeals from the July 10, 2017 order denying his motion

for reconsideration of the May 28, 2017 order. Although

plaintiff offers no explanation for his patently unreasonable

delay in moving to reinstate his complaint, we vacate both

orders and remand for reinstatement, as the R. 1:13-7

administrative order was obviously issued without any basis.

I

The record reveals the following. In February 2015,

plaintiff filed his complaint against defendants, alleging they

violated the New Jersey Conscientious Employee Protection Act,

N.J.S.A. 34:19-1 to -14. The specific issues on appeal do not

require that we delve into the details of plaintiff's

substantive claims.

It is undisputed defendants were served with the complaint

soon after it was filed, and that plaintiff filed proof of

service on or about March 6, 2015. In lieu of filing an answer,

defendants filed a motion for summary judgment or, in the

alternative, for a more definite statement, see Rule 4:6-4(a).

On August 14, 2015, defendants' motion for summary judgment was

granted "as to acts in 2012" but was otherwise denied. The

court ordered plaintiff to provide a more definite statement

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within ten days. Plaintiff did not do so, instead filing a

second amended complaint on September 9, 2015.1

Thereafter, defendants filed a motion to dismiss the new

complaint because plaintiff did not file a definite statement as

directed by the August 14, 2015 order. According to an order

entered on November 20, 2015, that motion was denied but

plaintiff was ordered to file the definite statement within ten

days. The order also indicates defendants had filed another

motion, because the order also dismissed certain defendants from

the second amended complaint and struck the allegations

"relating to events" that occurred before February 7, 2014.

Plaintiff did not provide a copy of the notice in the

record, but it is not disputed that, at some point before the

November 20, 2015 order was entered, the court issued a written

notice to plaintiff advising the action would be

administratively dismissed as to any or all defendants on

December 4, 2015 for lack of prosecution. See R. 1:13-7. The

case was in fact dismissed on the latter date. Plaintiff's

attorney acknowledges he must have received but does not recall

getting the notice.

1
The record does not reveal why plaintiff did not file an
amended complaint before he filed a second amended complaint.
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 Plaintiff did not file a more definite statement as

directed by the November 20, 2015 order. Instead, on December

9, 2015, he filed a third amended complaint. Defendants

responded by filing a motion to dismiss on the ground plaintiff

still had not filed a more definite statement in accordance with

the August 14, 2015 and November 20, 2015 orders. That motion

was denied by order dated February 5, 2016; three weeks later,

defendants forwarded their answer to the court for filing.

At the end of March 2016, the court returned the answer to

defendants' attorney, explaining the answer had been rejected as

non-conforming because the complaint had been dismissed on

December 4, 2015. Defense counsel notified plaintiff's counsel

of the dismissal. Notwithstanding, the parties engaged in

discovery, but at some unspecified point defendant ceased

conducting any discovery when plaintiff failed to take any steps

to reinstate the complaint. When in March 2017 plaintiff

endeavored to take defendants' deposition, defense counsel

reminded plaintiff's counsel the case was dismissed.

Plaintiff filed a motion to reinstate the complaint. On

May 28, 2017, the trial court denied the motion because

plaintiff did not "establish any ground for reinstatement of a

pleading dismissed in 2015 and which were communicated at a

minimum of 1 year ago by the adversary counsel."
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 Plaintiff moved for reconsideration of the May 28, 2017

order but on June 10, 2017, the court entered an order denying

the motion. Citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401

(Ch. Div. 1990), the court found plaintiff failed to bring to

its attention any evidence or law it had overlooked when it

considered the underlying motion.

Plaintiff appeals from the May 28, 2017 and June 10, 2017

orders.

II

"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) (citations omitted). We

are not bound by the trial court's legal conclusions. Alfano v.

BDO Seidman, LLP, 393 N.J. Super. 560, 573 (App. Div. 2007)

(citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

Rule 1:13-7 provides in relevant part:

(a) [E]xcept as otherwise provided by rule or
court order, whenever an action has been pending
for four months . . . without a required
proceeding having been taken therein as
hereafter defined in subsection (b), the court
shall issue written notice to the plaintiff
advising that the action as to any or all
defendants will be dismissed without prejudice
60 days following the date of the notice . . .
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 unless, within said period, action specified in
subsection (c) is taken. If no such action is
taken, the court shall enter an order of
dismissal without prejudice as to any named
defendant and shall furnish the plaintiff with a
copy thereof. 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. . . . 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. . . .

Subsection (b) provides the language that governs the

resolution of this matter. This subsection states in relevant

part:

(b) The following events constitute
required proceedings that must be timely
taken to avoid the issuance by the court of
a written notice of dismissal as set forth
in subsection (a):

(1) proof of service or
acknowledgment of service filed
with the court; or

(2) filing of answer; or
(3) entry of default; or

(4) entry of default judgment. . . .

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 [R. 1:13-7(b) (emphasis added).]

Rule 1:13-7 is "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). The rule seeks "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, 422 N.J. Super. at 379. A request for

reinstatement "should be viewed with great liberality." Ghandi

v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007). There

is a preference claims be adjudicated on their merits rather

than bar "a litigant's way to the courtroom" because of

procedural errors. Id. at 198 (internal quotation marks and

citation omitted).

Rule 1:13-7(a) provides the court may issue a notice to a

party when an action has been pending for at least four months,

and inform the party the action will be dismissed if none of the

"required proceeding[s]" defined in subsection (b) has occurred.

One of those required proceedings is filing proof the complaint

was served upon the defendant or defendants. R. 1:13-7(b)(1).

Here, it is not disputed one of the required proceedings

listed in Rule 1:13-7(b) did occur -- plaintiff filed proof of

service with the court, and did so as early as March 2015. In
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response to being served with the complaint, defendants filed

various motions for summary judgment or, in the alternative,

motions to compel plaintiff to provide a definite statement.

Therefore, because one of the required proceedings in Rule 1:13-

7(b) did occur, the complaint in this matter was mistakenly

administratively dismissed, likely because of the long gap

between the filing of proof of service and the answer. For that

reason, we vacate May 28, 2017 and July 10, 2017 orders and

remand for the reinstatement of the third amended complaint.

We make the following observation. Although we recognize

the complaint was mistakenly dismissed, thereafter, plaintiff

needlessly consumed the court's and defendants' time and

resources by failing to promptly seek reinstatement, which

likely could have been readily accomplished by timely submitting

a consent order.

Plaintiff does not deny he received notice of the dismissal

in December 2015; subsequently, defendants twice reminded him

the complaint needed to be reinstated. While willing to conduct

discovery for a limited period, defendants ultimately ceased

engaging in discovery altogether because the complaint remained

dismissed. On remand, the court may establish a discovery

schedule and trial date, taking into account the time lost due

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to plaintiff's failure to expeditiously seek the restatement of

his complaint.

Remanded for further proceedings consistent with this

opinion without prejudice to defendants. We do not retain

jurisdiction.

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