Motion to Dismiss For Failure to Prosecute or Discovery Delinquency in New Jersey

What Is a Motion to Dismiss For Failure to Prosecute or Discovery Delinquency?

Background

“A petitioner shall be prepared to prove his case by completion and competent evidence. In the absence of some evidence, the board may dismiss the petition. In the case of failure to appear, the board may dismiss the petition for lack of prosecution.” (See VSH Realty, Inc. v. Harding Township (1996) 291 N.J. Super. 295, 298.)

Rule 1:13–7(a) “is an administrative rule designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion. Dismissals under the rule are without prejudice. Accordingly, the right to 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.” (See Baskett v. Cheung (2011) 422 N.J. Super. 377, 384.)

“Normally, such dismissals should not be invoked in the absence of prejudice and unless the plaintiff's behavior is deliberate and contumacious.” (See Jepson Refrigeration Corp. v. City of Trenton (1996) 295 N.J. Super. 492, 496.)

General Information for Complaints and Motions

“A narrow scope of what may form a basis for a dismissal for lack of prosecution is entirely consistent with our view that dismissals of actions in general is a drastic remedy. Normally, such dismissals should not be invoked in the absence of prejudice and unless the plaintiff's behavior is deliberate and contumacious.” (See VSH Realty, Inc. v. Harding Township (1996) 291 N.J. Super. 295, 300.)

Rule 1:13-7(a) is an administrative rule “designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion.” (See Mason v. Nabisco Brands, Inc. (1989) 233 N.J.Super. 263 , 267, 558 A.2d 851.) “Dismissals under the rule are ‘without prejudice.’” (See R. 1:13-7(a); Ghandi v. Cespedes (2007) 390 N.J. Super. 193, 196.)

Rule 1:13–7 now provides “that a complaint dismissed against a defendant for lack of prosecution may be restored, without a formal motion, by consent order accompanied by the answer of the defendant, the case information statement and the requisite fee.” (See Baskett v. Cheung (2011) 422 N.J. Super. 377, 384 n.4.)

“If the complaint is not restored within 60 days of the dismissal, however, any subsequent restoration would need to be effected by motion for good cause shown, if filed within 90 days of the dismissal, and for exceptional circumstances if filed thereafter. In discussing this proposal, the Committee determined that it should be applied only in multi-defendant cases and that the proposed amendments should incorporate standards similar to those set forth in R. 4:8–1 (Third Party Brought in by Defendant).” (See id.)

Standard of Review and Burdens of Proof

“Review of an order denying reinstatement of a complaint dismissed for lack of prosecution proceeds under an abuse of discretion standard.” (See Weber v. Mayan Palace Hotel & Resorts (2007) 397 N.J.Super. 257, 262, 936 A.2d 1031; Baskett v. Cheung (2011) 422 N.J. Super. 377, 382.)

“Except as otherwise provided by rule or court order, if within three months of filing of a complaint in a civil action in the Law Division no answer has been filed and plaintiff has neither requested the entry of a default nor taken any other action to prosecute the case, the complaint shall be subject to dismissal for want of prosecution in accordance with the provisions of paragraph (h) of this rule.” (See Rivera v. Atl. Coast Rehab. Center (1999) 321 N.J. Super. 340, 345.)

R. 1:13-7 (a) authorizes the court to dismiss a civil action “pending in any court for 6 months without any required proceeding having been taken therein. . . . It is our understanding that the primary utility of the rule has traditionally been the dismissal of cases in which service has not been made on the defendant within six months following the filing of the complaint.” (See Rivera v. Atl. Coast Rehab. Center (1999) 321 N.J. Super. 340, 344.)

“Reinstatement of the action after dismissal may be permitted upon submission of a consent order that vacates the dismissal and allows the dismissed defendant to file an answer, provided the proposed consent order is accompanied by the answer for filing, a case information statement and the requisite fee. The entry of the consent order may be permitted in the discretion of the court. Otherwise, reinstatement of the action after dismissal may be permitted only on motion for good cause shown.” (See Ghandi v. Cespedes (2007) 390 N.J. Super. 193, 196.)

‘Good cause’ is an amorphous term, that is, it “is difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied.” (See id.)

“Accordingly, the right to 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.” (See Rivera v. Atl Coast Rehab. Center (1999) 321 N.J.Super. 340 , 346, 729 A.2d 42; Ghandi v. Cespedes (2007) 390 N.J. Super. 193, 196.)

“Notwithstanding the adoption of the good cause standard, we are satisfied that, absent 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.” (See Ghandi v. Cespedes (2007) 390 N.J. Super. 193, 197.)

Meet and Confer

“The [c]ourt finds that the parties are quick to seek judicial intervention without making good faith efforts to resolve the issues before filing motions. . . . The parties are not precluded or enjoined from filing motions; they are entitled to access to the courts. That access, however, can be and should be conditioned on undertaking reasonable and good faith efforts to resolve the issues amicably before filing a motion.” (See Rule 1:6-2(c) [recognizing that prior to filing discovery or calendar motions, parties must engage in good faith efforts to resolve the issues.]; Parish v. Parish (2010) 412 N.J. Super. 39, 51.)

The Court’s Decisions

It is well settled that Rule 1:13–7(a), “is our docket-clearing rule that is designed 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” (See Baskett v. Cheung (2011) 422 N.J. Super. 377, 379.)

It is also well settled that Rule 1:13–7, “says the motion to restore is granted on good cause. And the—and the standard of good cause is—is used if the motion is filed within 90 days of the order of dismissal. But thereafter [ Rule ] 1:13–7 requires that the—that the parties show exceptional circumstances to restore—reinstate a complaint—to restore a complaint.” (See id.)

Documents for Motion to Dismiss For Failure to Prosecute or Discovery Delinquency in New Jersey

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Gallagherq Daniel Vs Stewart Nina document preview

Complaint for ATL-L-000999-24 submitted by GALLAGHER, DANIEL J, DANIEL J G…

19 pages

ATL-L-000999-24 05/14/2024 4:25:38 PM Pglof19 Trans ID: LCV20241230177 Daniel J. Gallagher, Esquire — ID #000231992 LAW OFFICE OF DANIEL J. GALLAGHER 336 N. Annapolis Avenue Atlantic City, NJ 08401 (609) 541-4956 Attorneys for Plaintiffs ) SUPERIOR COURT OF NEW JERSEY DANIEL J. GALLAGHER, ESQUIRE ) LAW DIVISION: ATLANTIC COUNTY Plaintiffs, D…