Failure To Serve Defendant And Seek Reinstatement Of Complaint for Seven Years Justifies Order Denying Reinstatement Of Complaint

Plaintiff Mildred Valentin sued defendant Sabrina Pinckney for an automobile accident that occurred in October 2011.  However, she failed to successfully serve the defendant with the complaint until seven years later and, in the interim, the complaint had been dismissed for lack of prosecution.  The issue in Valentin v. Pinckney, 2021 N.J. Super. Unpub. LEXIS 3105 (App. Div. December 15, 2021) was whether the trial court correctly denied the plaintiff’s motion to reinstate the complaint due to the seven year gap between the date of dismissal of the lawsuit and the date of service on the defendant.

The plaintiff had been involved in a two car accident in which defendant was the driver of the second vehicle that allegedly rear-ended the plaintiff’s car.  She filed a personal injury suit against the defendant in August 2012 and unsuccessfully tried to serve her with the complaint in September 2012.  The process server she utilized advised that the address listed for defendant was a large apartment building so an apartment number or letter was needed to locate her residence.  The server offered to further investigate and perform a skip trace search but it does not appear that the plaintiff pursued this option.

On March 15, 2013 the plaintiff’s lawsuit was dismissed without prejudice for lack of prosecution.  Subsequently, plaintiff conducted an internet search, which produced several potential Newark addresses for defendant and she contacted the Postmaster of Newark to see if defendant resided at any of the addresses listed on the internet.  The Postmaster responded that defendant was not known at that address. 

It appears that plaintiff’s counsel did not resume attempting to try to serve defendant until January 2020 when he attempted to serve defendant at various Newark addresses.  Exactly seven years after the dismissal of the complaint, the plaintiff had obtained an apartment number for the defendant and the plaintiff’s process server successfully served defendant with the complaint at the same address listed for her in the October 2011 police crash investigation report.

Plaintiff’s counsel promptly filed a motion to reinstate the case, which the trial court denied without argument on April 9, 2020.  In the opinion accompanying the order, the judge stated that the plaintiff did not “articulate a reason for the inordinate delay in moving to restore this matter” and there was “no showing of good cause or exceptional circumstances to explain the gaps in activity to restore this [seven-plus] year old matter.”

The plaintiff filed a motion for reconsideration, which the trial court judge also denied.  Thereafter, the plaintiff appealed the orders entered by the trial court.  The Appellate Division noted that the standard of the review would be whether the trial court abused its discretion in denying the motion to reinstate and the later motion for reconsideration.

The Court noted that the good cause standard would apply and that reinstatement would be improper where defendant would be prejudiced by the reinstatement.  The defendant in this case objected to the reinstatement, contending that she would be prejudiced in her ability to defend herself against the plaintiff’s stale allegations due to lost witnesses and also difficulty in accessing plaintiff’s medical records from several years before the accident.  The defendant pointed out that these records were necessary to determine if plaintiff’s current condition was causally related to the accident. 

While plaintiff’s counsel did forward certain medical records and reports to defense counsel, the defendant pointed out that treatment providers are only required to maintain patient records for seven years.  Thus, the defendant argued that her lack of access to relevant medical records well pre-dating the accident may limit the defenses available to her.

The Appellate Division found that, in balancing the party’s concerns, “the judge was presented with the extraordinary fact that plaintiff failed to seek reinstatement of her case for more than seven years after entry of the dismissal order.”  The Court noted the plaintiff’s argument that he was unable to secure a proper address for defendant and that was the excuse for the delay.  However, the Appellate Division found that the circumstances do “not remotely excuse plaintiff’s unexplained failure to pursue alternate methods of service.” 

As an example, the plaintiff made no effort to effectuate substituted service on defendant’s insurance carrier, which is permitted by the court rules.  The identity of the insurance carrier was listed on the 2011 Police Crash Investigation Report.

Hence, the Appellate Division could not conclude that the judge abused his discretion in finding plaintiff failed to demonstrate good cause for the seven year delay in moving to reinstate the complaint, nor that his initial decision was based on a palpably incorrect or irrational basis, nor that the judge failed to consider certain evidence.  The Court noted that the plaintiff provided no reason for failing to serve the defendant through her insurance carrier as permitted by the court rules.  In conclusion, the Appellate Division upheld the trial court’s denial of the motion to reinstate the complaint.

Tags: dismissal, reinstatement