Baskett v. Cheung, 422 N.J. Super. 377 (App. Div. 2011). The facts of this case, detailed in the opinion of Judge Harris for this appellate panel, were about as egregious as they come. Plaintiffs’ original counsel had an internal office communications snafu, resulting in a failure to serve plaintiffs’ complaint for several years. The Law Division dismissed the case for failure to prosecute, under Rule 1:13-7(a). Plaintiffs had no role whatsoever in what transpired. Later, they got new counsel, who sought to reinstate the case, but the Law Division denied reinstatement and declined to reconsider. On appeal, the Appellate Division reversed and reinstated the case.
Judge Harris stated that an abuse of discretion standard governed the Appellate Division’s review of the decision to dismiss for lack of prosecution, and that the panel owed no deference to the Law Division’s legal conclusions. Since this case involved a single defendant only, a “good cause” standard applied (“In multi-defendant cases, reinstatement within ninety days is permitted on a showing of good cause, but otherwise a party must demonstrate exceptional circumstances,” as Judge Harris noted).
Relying heavily on Ghandi v. Cespedes, 390 N.J. Super. 193 (App. Div. 2007), Judge Harris emphasized that, under the “good cause” standard, “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…. [A]bsent a finding of fault by the plaintiff and prejudice to the defendant, a motion to restore under the rule should be viewed with great liberality.”
Here, plaintiffs were “essentially blameless.” Defendant claimed prejudice, but offered only “generalities (‘[m]emories of witnesses clearly have faded’) or conjectures (‘[i]t is hard to believe that a meaningful deposition of any of the plaintiffs is going to be obtainable’).” That did not suffice to show prejudice. Though the panel was unhappy that plaintiffs had seemingly failed to exercise any oversight over their original counsel, Judge Harris was “most concerned” with the first attorney’s lack of attention to the case, and he declined to punish plaintiffs for that.
These plaintiffs dodged a bullet. Whether you are a plaintiff or an attorney, don’t let this happen to you. The Appellate Division may not be so indulgent the next time.