JORGE E. CALVACHE VS. WERNER ENTERPRISES, INC. (L-2579-16, PASSAIC COUNTYT 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4770-18T3

JORGE E. CALVACHE and
SHIRLEY M. CALVACHE,

Plaintiffs-Appellants,

v.

WERNER ENTERPRISES,
INC.,

Defendant-Respondent,

and

FABIAN M. PEART,

Defendant.
_________________________

Argued telephonically July 14, 2020 –
Decided July 29, 2020

Before Judges Sabatino and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-2579-16.
 Glenn Anthony Farrell argued the cause for appellants
(Calcagno & Associates, attorneys; Glenn Anthony
Farrell, on the briefs).

Jonathan C. Springer argued the cause for respondent
(Salmon Ricchezza Singer & Turchi, LLP attorneys;
Jeffrey A. Segal and Jonathan C. Springer, on the brief).

PER CURIAM

Plaintiffs Jorge E. Calvache and Shirley M. Calvache, husband and wife,

appeal two trial court orders denying their motion to reinstate their complaint in

this personal injury case after it was dismissed under Rule 1:13-7(a) for lack of

prosecution. Plaintiffs' reinstatement motion was filed almost five years after

the subject accident and over two years after the court dismissed their complaint.

Applying the deferential standard of review that governs trial court rulings on

reinstatement motions, we affirm.

According to their complaint, plaintiffs were involved in a motor vehicle

accident on July 16, 2014, when a commercial vehicle driven by defendant

Fabian M. Peart struck plaintiffs' vehicle while attempting a lane change.

Plaintiffs were both injured in the collision. They retained a law firm to

represent them in this personal injury case. On July 15, 2016, a day before the

two-year statute of limitations ran, plaintiffs' law firm filed this civil action in

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the Law Division in Passaic County against Peart and his then employer, Werner

Enterprises. The complaint also named fictitious defendants.

Because plaintiffs had not made service on either named defendant, the

court administratively dismissed the case in February 2016 for lack of

prosecution, pursuant to Rule 1:13-7(a). Fifteen months later in May 2018,

plaintiffs served Werner Enterprises with the summons and complaint.

Plaintiffs have never made service on Peart, apparently because they have not

located him.

Plaintiffs took no further action concerning the lawsuit until March 2019,

when their counsel moved to reinstate the complaint. According to the

supporting certifications, plaintiffs' designated trial attorney and his law firm

have been overwhelmed by numerous personal and business problems.

Although we need not elaborate on all of those difficulties here, they included

the death of counsel's brother, the serious illness of his father, the defection of

several attorneys from his law firm, and the office manager's unexpected leave

of absence. The certifications do not indicate whether the law firm explored the

possibility of referring the case to a different firm while its operations were

impaired.

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 After considering plaintiffs' submission and opposition from Werner

Enterprises, the trial court denied the reinstatement motion. The motion judge

notated the following reasons in the denial order:

Application is denied. It is unfortunate that Plaintiffs’
counsel had issues with a family member’s health but
that does not excuse this matter being ignored for over
two years. The reasons set forth wh[ile] unfortunate do
not constitute exceptional circumstances.

Plaintiffs moved for reconsideration. Again, defendant opposed the

belated reinstatement of the complaint. The trial court denied this motion as

well, noting the following comments on the denied order:

Application denied. This is one of many cases where
cases were dismissed for failure to provide discovery,
failure to prosecute and a myriad of other reasons. The
court has reinstated some of the dismissed cases but it
is a case by case analysis. I[n] this case applicant has
failed to show that the court's decision was based on
plainly incorrect reasoning or that the court failed to
consider evidence.

We learned at oral argument on the appeal that this order's reference to

other "dismissed cases" refers to several other reinstatement motions that had

been filed by the law firm in other matters in this vicinage. As noted in the

reconsideration denial, the trial court performed a "case by case analysis" of the

circumstances in these matters and apparently reinstated some but not all of

them.

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 The present appeal ensued.

The applicable legal standards are clear. Rule 1:13-7(a) specifies that in

"multi-defendant actions in which at least one defendant has been properly

served," an opposed motion to reinstate a case dismissed for lack of prosecution

"shall be granted only on a showing of exceptional circumstances." Ibid. A less

stringent standard of "good cause" applies only if the motion to reinstate is filed

within ninety days of the dismissal. Ibid. Here, plaintiffs' motion to reinstate

was filed more than two years after the case was dismissed, long after the ninety-

day "good cause" period ended.

We reject plaintiffs' argument that the trial court should have applied a

"good cause" standard here because only one defendant has appeared so far in

this case. The Rule explicitly adopts the more stringent standard for

reinstatement where, as here, the case is a multi-defendant action "in which at

least one defendant has been properly served." Ibid. It is inconsequential that

the unserved co-defendant, Peart, was apparently an employee or agent of

Werner Enterprises. It cannot be presumed that the interests of those co-

defendants are synonymous. They are two distinct named parties.

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 Moreover, the Rule is explicit about how the court must analyze the matter

if at least one defendant has been served. Ibid. The "exceptional circumstances"

test applies.1

Although the death or health emergencies of counsel or counsel's family

members may qualify as exceptional circumstances, see O'Donnell v. Ahmed,

363 N.J. Super. 44, 51 (Law Div. 2003), such unfortunate events do not justify

indefinite relaxation of compliance with the court rules. In addition, recurring

problems with staff generally are insufficient to justify extensions of time.

Rodriguez v. Luciano, 277 N.J. Super. 109, 112-13 (App. Div. 1994).

The scope of review is critical to this appeal. We must review the denial

of a motion to reinstate a complaint dismissed for lack of prosecution for abuse

of discretion. Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App.

Div. 2011). An abuse of discretion "arises when a decision 'is made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

1
During questioning counsel during oral argument on the appeal, plaintiffs'
counsel represented to us that he would be willing to dismiss co-defendant Peart
in order to take advantage of the more lenient "good cause" standard for
reinstatement. We have pondered that representation and conclude it would be
inappropriate to alter the applicable standard on appeal retroactively by revising
the pleadings at this late juncture.
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(2002) (quoting Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir.

1985)). Guided by that scope of review here, we are unpersuaded the motion

judge abused his discretion in denying the motion for reinstatement and the

ensuing motion for reconsideration.

The application of the "exceptional circumstances" test must be evaluated

on a case-by-case basis. Here, the motion judge had the special opportunity and

perspective to evaluate a range of dismissed cases that had been presented for

relief by the same law firm. In the judge's assessment, the present case was

comparatively too far down the spectrum of those cases to warrant

reinstatement. Nearly five years had passed since the subject accident, the

allegedly responsible driver had not been found and served, plaintiff's medical

status could possibly have changed, and defendant's access to medical records

of any previous treatment might not have been assured. The prospects for

prejudice in defending this stale case are not purely conjectural.

In sum, although the circumstances of plaintiffs' attorney and his law firm

were surely sympathetic, we are unpersuaded the motion judge's assessment was

so "wide of the mark" to compel appellate interference. Flagg, 171 N.J. at 568.

The decision fell within the zone of discretion. It is not our role to second-guess

that determination and impose what we might have done instead.

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Affirmed.

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