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Plaintiff’s Complaint Dismissed Based Upon The Statute Of Limitations, Despite COVID-19 Order Extending Statute Of Limitations

By on May 20, 2022 in Statute of Limitations with 0 Comments

On November 21, 2018, plaintiff Michael Sutton was involved in a motor vehicle accident with defendant Kevin Babilonia.  Plaintiff suffered injuries and retained counsel just six days before the two year statute of limitations expired.  In the case of Sutton v. Babilonia, 2022 N.J. Super. Unpub. LEXIS 792 (App. Div. May 12, 2022), the issue was whether the second Omnibus COVID-19 Order (issued by the New Jersey Supreme Court) extended plaintiff’s statute of limitations by 56 days and/or whether plaintiff substantially complied with the two year statute of limitations.

According to the Certification filed by plaintiff’s attorney, just four days before the statute of limitations was said to expire, plaintiff hired him.  After obtaining information necessary to file the complaint, the attorney attempted to file the complaint electronically.  The attorney encountered a number of problems in getting the eCourts system to accept his filing documents but, following several attempts, the attorney believed he had successfully filed the complaint in the eCourts system.  When he did not receive a docket number, after an unusually long time, the plaintiff’s attorney called the “Help Desk” at eCourts.  The eCourts representative advised him that he would get back to him.

As it turned out, the eCourts system did not accept plaintiff’s complaint.  As a result, plaintiff’s complaint was not filed until more than one month after the statute of limitations expired.  The attorney finally was successful in filing plaintiff’s complaint on December 23, 2020.

Defendant Babilonia filed an Answer in February 2021 and then filed a Motion to Dismiss the Complaint as time-barred. 

Initially, the motion judge noted that the statute of limitations ran on November 21, 2020 but that the plaintiff’s complaint was not filed until December 23, 2020.  Despite the late filing, the judge concluded that the bar of the statute of limitations did not apply because the second Omnibus Order excluded the period of March 16, 2020 through May10, 2020.  Hence, he added 56 days beyond November 21, 2020 to the statute of limitations and, accordingly, concluded that the complaint was timely filed. 

The defendant thereafter filed a motion for reconsideration which the motion judge also denied.  The judge provided an alternate basis for denying defendant’s motion, in that plaintiff substantially complied with the statute of limitations “based upon the unsuccessful efforts of their attorney and the problems he encountered with electronic filing on eCourts.” 

The defendant then filed a motion with the Appellate Division for leave to appeal.  The defendant argued that the Supreme Court’s second Omnibus Order did not serve to add 56 days to all statutes of limitations for all actions.  Further, defendant argued that the record did not support the application of the doctrine of substantial compliance to excuse the filing of a complaint beyond the deadline for the statute of limitations. 

Upon appeal, the Appellate Division noted that on April 24, 2020 the New Jersey Supreme Court issued the second Omnibus Order to address the impact of the COVID-19 pandemic on the New Jersey Court system.  This order provided that the time period of March 16 through May 10, 2020 shall be deemed the same as a legal holiday for purposes of computing the statute of limitations for matters in all courts.

The motion judge interpreted this Order to add 56 days to plaintiff’s two year statute of limitations.  The Appellate Division disagreed with the motion court’s interpretation of the order. 

Under the court rule which addresses the computation of any period of time fixed by rule or court order, it excludes a Saturday, Sunday, or legal holiday in computing the time period.  Thus, this rule makes it clear that where the statute of limitations expires on a legal holiday, the party may act on the next day that is not a Saturday, Sunday, or legal holiday. 

Thus, the Appellate Division found that the second Omnibus Order converted every day from March 16 to May 10, 2020 into a legal holiday.  The court explained that, for example, “if a plaintiff’s statute of limitations ran on April 7, 2020, a plaintiff could satisfy the statute of limitations by filing a complaint on May 11, 2020.  However, in this case, plaintiff’s statute of limitations ran on November 22, 2020, well beyond the March 16 to May 10, 2020 period.”

The Appellate Division specifically noted that the second Omnibus Order did not extend the statute of limitations for a 56 day time period as to plaintiff’s claims.  Thus, the Court found that the motion judge incorrectly found that plaintiff timely filed his complaint pursuant to the second Omnibus Order.

Additionally, the Appellate Division rejected the application of the doctrine of substantial compliance to justify the late filing of the complaint.  The Court noted that prior case law set out the following elements of substantial compliance: “1) The lack of prejudice to the defending party; 2) a series of steps taken to comply with the statute involved; 3) a general compliance for the purpose of the statute; 4) a reasonable notice of petitioner’s claim; and 5) a reasonable explanation why there was not a strict compliance with the statute.”

The Appellate Division found that the plaintiff could not satisfy all five of these requirements to support the application of the doctrine of substantial compliance.  Plaintiff failed to show that there was any evidence that the defendant received, within the statutory period, “reasonable notice of plaintiff’s claim” or even notice of plaintiff’s intention to make a claim.  Further, there was no evidence that defendant’s insurance carrier ever received notice of the pendency of any suit or an intention to make a claim within the statutory period. 

Further, Court found that there was insufficient credible evidence to satisfy the last element as to a reasonable explanation why there was not strict compliance with the statute.  The attorney failed to justify why he waited for an unspecified period of time before finally achieving the successful eCourts filing on December 20, 2020.  He failed to set forth the reasons for not appreciating a lack of confirmation of filing on November 20, for the reasons for the delay and following up regarding the filing after he contacted the eCourts Help Desk. 

Thus, the Appellate Division found that the plaintiff had failed to satisfy both the fourth and fifth elements required to apply the doctrine of substantial compliance.  Hence, the Court found that the motion court misinterpreted the second Omnibus Order and incorrectly applied the doctrine of substantial compliance.  Therefore, the Appellate Division reversed the motion judge’s order and remanded the matter back to the trial court to enter an order dismissing plaintiff’s complaint with prejudice. 

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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