STEVEN AGYARKWA VS. ALARIS HEALTHCARE AT HAMILTON PARK (L-1555-16, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2628-18T4
STEVEN AGYARKWA,
Plaintiff-Appellant,
v.
ALARIS HEALTHCARE
AT HAMILTON PARK,
Defendant-Respondent.
___________________________
Argued January 27, 2020 – Decided February 20, 2020
Before Judges Sumners, Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1555-16.
David Robert Cohen argued the cause for appellant.
Thomas J. Pyle argued the cause for respondent
(MacNeill, O'Neill & Riveles, LLC, attorneys; Thomas
J. Pyle, of counsel and on the brief; Ethan Lillianthal,
on the brief).
PER CURIAM
Plaintiff Steven Agyarkwa appeals from a January 11, 2019 Law Division
order denying his motion to reinstate his complaint that had been
administratively dismissed without prejudice for failure to prosecute pursuant to
Rule 1:13-7(a). For the following reasons, we reverse and remand.
Plaintiff was a resident at defendant Alaris Healthcare at Hamilton Park's
nursing home facility (Alaris) from January 7, 2014 to April 16, 2014, with an
admitting diagnosis of quadriplegia and quadriparesis. Plaintiff is profoundly
disabled, incapable of independent living, and unable to sign his name due to
his condition.
While at Alaris, braces were placed on his knees to "straighten them out."
The braces were removed three days later. The braces allegedly caused him to
suffer significant injuries resulting in a three-week hospitalization and the need
for a home health aide after his hospital discharge.
At some point in 2014, plaintiff retained the law firm of Jacoby & Myers
to pursue professional negligence claims against Alaris. In October 2014,
Jacoby & Myers requested medical records from Alaris. On December 5, 2014,
Alaris mailed a copy plaintiff's medical records to Jacoby & Meyers. On
December 22, 2014, a case manager at Jacoby & Myers wrote to Alaris advising
it that the firm was retained to represent plaintiff relating to his personal injuries
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and requesting the letter be turned over to Alaris' liability carrier. On April 21,
2015, Jacoby & Myers sent a second notice of its December 22, 2014 letter to
Alaris. It is unclear whether Jacoby & Myers had any additional contact with
Alaris.
Plaintiff filed a pro se complaint against Alaris on April 13, 2016, three
days before the two-year statute of limitations was set to expire. The complaint
was handwritten by plaintiff's niece because of his inability to write. The
complaint alleged professional negligence.
On October 28, 2016, Civil Case Management sent a written notice to
plaintiff advising that his complaint had been dismissed without prejudice for
lack of prosecution pursuant to Rule 1:13-7.1 The notice advised plaintiff that
"[a] formal notice of motion is now required to restore this case to active tr ial
status."
On November 23, 2016, Alaris sent an answer that included separate
defenses, and a demand for an affidavit of merit to the court for filing. The
answer was received and filed by the court on November 28, 2016. Two days
1
The record on appeal does not indicate the manner of service of the summons
and complaint on Alaris or the specific reason for the dismissal for failure to
prosecute. The trial court found the complaint was dismissed because plaintiff
never filed a proof of service.
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later, Civil Case Management notified defense counsel in writing that the
complaint ha[d] been dismissed pursuant to Rule 1:13-7. The notice requested
defense counsel to "contact [p]laintiff's counsel to submit order restoring case."
On December 8, 2016, defense counsel wrote to plaintiff confirming "that the
case had been dismissed for lack of prosecution pursuant to New Jersey Court
Rule 1:13-7." The letter advised "that it would be necessary for [plaintiff] to
have this case restored to the active court calendar before this matter can
proceed." The letter further advised that if the case was not restored within sixty
days, counsel would "file a motion seeking to dismiss the case with prejudice."
Plaintiff did not respond to the letter.
Plaintiff ultimately retained new counsel in late October or early
November 2018 and filed a motion to restore the complaint and to compel
production of records on November 14, 2018. Alaris opposed the motion and
cross-moved to dismiss the complaint for failure to provide an affidavit of merit.
On January 11, 2019, the motion court heard oral argument and issued an order
and oral decision denying both motions.
In its oral decision, the trial court noted "a complaint was timely filed, the
records were provided, records were forwarded, a complaint was served,
everything was done except a reinstatement of the complaint." Recognizing that
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plaintiff was pro se when the complaint was drafted and filed, the court
explained that pro se plaintiffs are "bound by the same court rules as an
attorney." The court concluded that the failure to restore the complaint was
"fatal to reinstating this case."
The court stated the standard for reinstatement is conjunctive. In order to
deny reinstatement, "[t]he court must find fault by the plaintiff and prejudice to
the defendant." The court concluded plaintiff was at fault by causing the delay.
The court noted the complaint would have been restored had plaintiff filed a
timely motion to reinstate supported by "a one paragraph certification."
The court did not accept Alaris' argument that a registered nurse was now
unavailable because she is no longer employed by Alaris. The court thus
concluded employee turnover did not create prejudice. However, the court
found allowing reinstatement would prejudice Alaris by affording plaintiff
additional time to obtain an affidavit of merit. The court noted the Legislature
imposed a 120-day time limit for serving an affidavit of merit in professional
negligence cases. See N.J.S.A. 2A:53A-27. The court concluded that the delay
had "taken away [Alaris'] ability to assert a defense they would have had and it
would have been 120 days from November 30."
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This appeal followed. On March 1, 2019, the motion court issued a
subsequent fifteen-page amplification of its oral decision pursuant to Rule 2:5-
1(b). The court noted plaintiff "is almost entirely incapable of independent
movement" and "unable to handwrite his complaint."
Regarding plaintiff's fault, the court stated:
Plaintiff retained counsel in October of 2014. No
information was provided to the court as to why counsel
at Jacoby & Myers did not file a complaint. Plaintiff
filed his complaint pro se on April 13, 2016. Plaintiff
did not contest that he received a notice from the court,
stating that the complaint was dismissed on October 28,
2016, and a letter from [d]efense counsel dated
December 8, 2016, stating that [p]laintiff would have to
file a motion to reinstate in order to prosecute his claim.
Yet, [p]laintiff failed to take any steps to advance this
case until November of 2018 – thirty-one months after
filing the complaint and over two years after the
complaint was dismissed. Despite [p]laintiff's physical
disabilities, [p]laintiff did not set forth any mental
disability that would prevent him from understanding
what the court notices meant or what was needed to file
suit against [d]efendant. On the other hand, [p]laintiff
showed great ability to prosecute his claim – he retained
counsel at Jacoby & Myers back in 2014, then filed his
own pro se complaint three days before the statute of
limitations expired and (at some point) served it on
[d]efendant. He went back to Alaris to ask that his
medical records be sent to his physician, then he
retained new counsel.
Regarding prejudice to Alaris, the court analogized this case to Czepas v.
Schenk, 362 N.J. Super. 216 (App. Div. 2003), where the plaintiff's attorney
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intentionally failed to serve the defendants to gain additional time to obtain and
serve an affidavit of merit. Id. at 219. Here, the trial court found:
Plaintiff intentionally failed to file this motion to
restore the complaint, despite two notices that his
complaint was dismissed, including a notice from
[d]efense counsel. Plaintiff's failure to prosecute this
claim effectively expanded the time restraints in the
Affidavit of Merit statute. See N.J.S.A. 2A:53A-27
(requiring plaintiff to serve the affidavit of merit within
60 days following the date of filing of an answer).
Because [p]laintiff failed to reinstate the complaint,
[d]fendant[] [was] unable to successfully file an answer
and begin the clock for when the affidavit of merit was
required. Thus, [p]laintiff tolled the sixty-day time
restraint and expanded it to be over two years. Plaintiff
should not be able to interminably extend the time to
file an AOM by failing to move to reinstate a complaint
dismissed for lack of prosecution, thereby prejudicing
[d]efendant by denying the defense of the statute.
The court "found that [p]laintiff did not show good cause to reinstate the
complaint as [p]laintiff was at fault in the delay to reinstate and there would be
prejudice to [d]efendant."
On appeal, defendant argues: (1) the motion court erred in failing to
reinstate the complaint because defendant filed an answer after the
administrative dismissal; and (2) the motion court erred in failing to reinstate
the complaint because plaintiff has shown good cause for reinstatement.
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We 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 (2002) (quoting Achacoso-Sanchez v. I.N.S., 779
F.2d 1260, 1265 (7th Cir. 1985)).
We review legal issues de novo. Alfano v. BDO Seidman, LLP, 393 N.J.
Super. 560, 573 (App. Div. 2007). "A trial court's interpretation of the law and
the legal consequences that flow from established facts are not entitled to any
special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995) (citations omitted).
Rule 1:13-7(a) provides in pertinent part:
whenever an action has been pending for four months .
. . without a required proceeding having been taken[,] .
. . the court shall issue written notice to the plaintiff
advising that the action as to any or all defendants will
be dismissed without prejudice [sixty] days following
the date of the notice . . . unless, within said period,
action specified in subsection (c) is taken.
"The following events constitute required proceedings that must be timely taken
to avoid the issuance by the court of a written notice of dismissal": (1) filing of
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a proof of service or acknowledgment of service; (2) filing of an answer; (3)
entry of a default; or (4) entry of a default judgment. R. 1:13-7(b). However,
dismissal shall not be entered if certain specified events, including filing a proof
of service or an answer, occur within four months. R. 1:13-7(c).
In addition to setting forth grounds for dismissal, Rule 1:13-7(a) provides
two methods for reinstating a complaint against a single defendant that has been
dismissed for lack of prosecution. The complaint may be reinstated by "a
consent order vacating the dismissal and allowing the dismissed defendant to
file an answer." R. 1:13-7(a). "If the defendant has been properly served but
declines to execute a consent order, plaintiff shall move on good cause shown
for vacation of the dismissal." Ibid.
Although "good cause" is difficult to precisely define, "[i]ts 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." Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007)
(quoting Del. Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228,
232 (App. Div. 2002)). "In applying the good cause standard for reinstating a
complaint under Rule 1:13-7(a), 'we are satisfied that, absent a finding of fault
by the plaintiff and prejudice to the defendant, a motion to restore under the rule
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should be viewed with great liberality.'" Giannakopoulos v. Mid State Mall, 438
N.J. Super. 595, 609 (App. Div. 2014) (quoting Ghandi, 309 N.J. Super. at 197).
"[Rule] 1:13-7 is an administrative rule designed to clear the docket of
cases in which plaintiff has failed to perform certain acts." Pressler & Verniero,
Current N.J. Court Rules, cmt. 1.1 on R. 1:13-7 (2020). Administrative
dismissals pursuant to Rule 1:13-7(a) are meant to clear to "clear the docket of
cases that cannot, for various reasons, be prosecuted to completion." Mason v.
Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989). "Dismissals
under the rule are 'without prejudice.'" Ghandi, 390 N.J. Super. at 196 (citing
R. 1:13-7(a)). "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.'" Ibid. (quoting Rivera v.
Atl. Coast Rehab. Ctr., 321 N.J. Super. 340, 346 (App. Div. 1999)). "Eagerness
to move cases must defer to our paramount duty to administer justice in the
individual case." Id. at 198 (quoting Audubon Volunteer Fire Co. No. 1 v.
Church Const. Co., 206 N.J. Super. 405, 406 (App. Div. 1986)).
We are also mindful that our court rules
shall be construed to secure a just determination,
simplicity in procedure, fairness in administration and
the elimination of unjustifiable expense and delay.
Unless otherwise stated, any rule may be relaxed or
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dispensed with by the court in which the action is
pending if adherence to it would result in an injustice.
[R. 1:1-2(a).]
We note, however, that pro se litigants are expected to follow the Court
Rules, just as an attorney. See, e.g., City of Clifton v. Cresthaven Cemetery
Ass'n, 17 N.J. Super. 362, 364 (App. Div. 1952) (observing that compliance with
a particular court rule should not be dispensed with when a non-lawyer appears
pro se).
Applying these principles to the unique facts of this case, we conclude the
trial court mistakenly applied its discretion in denying plaintiff's motion to
reinstate his complaint.
Plaintiff argues he has demonstrated good cause because he is "profoundly
disabled," prepared and filed his complaint pro se, and defendant suffered no
prejudice.2 Coupled with the absence of any evidence in the record that plaintiff
intentionally delayed the filing of his reinstatement motion to gain a strategic
advantage by delaying the deadline for serving an affidavit of merit, we agree.
In general, a decision on the merits is preferred to a disposition on
procedural grounds.
2
Plaintiff also argues that, by filing its answer, Alaris consented to the
reinstatement of his complaint. We disagree.
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Our Court Rules, from their inception, have been
understood as "a means to the end of obtaining just and
expeditious determinations between the parties on the
ultimate merits." Ragusa v. Lau, 119 N.J. 276, 284
(1990) (quoting Tumarkin v. Friedman, 17 N.J. Super.
20, 27 (App. Div. 1951)); see also Ponden v. Ponden,
374 N.J. Super. 1, 9-10 (App. Div. 2004); Tucci v.
Tropicana Casino & Resort, Inc., 364 N.J. Super. 48,
53 (App. Div. 2003). As a result, the Supreme Court
has recognized a "strong preference for adjudication on
the merits rather than final disposition for procedural
reasons." Galik v. Clara Maass Med. Ctr., 167 N.J. 341,
356 (2001) (quoting Mayfield v. Cmty. Med. Assocs.,
P.A., 335 N.J. Super. 198, 207 (App. Div. 2000)).
[Alpha Beauty Distribs., Inc. v. Winn-Dixie Stores,
Inc., 425 N.J. Super. 94, 102 (App. Div. 2012).]
The trial court denied plaintiff's motion to reinstate for failure to
demonstrate "good cause" because it found plaintiff was at fault for the delay in
moving to reinstate and the delay prejudiced Alaris.
Alaris has not demonstrated that it would experience prejudice if
plaintiff's complaint was reinstated. Alaris claims it would be prejudiced by the
significant additional time that plaintiff would gain to serve an affidavit of merit.
According to Alaris, this undermines its Alaris' ability to enforce its defense of
lack of a timely affidavit of merit. To the contrary, that defense is preserved.
Upon the complaint's reinstatement, plaintiff will still be subject to the
requirements of the affidavit of merit statute. Alaris will have the opportunity
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to object to plaintiff's affidavit of merit if it does not: (1) meet the time
limitations for service; (2) include the required opinion that there exists a
reasonable probability the care rendered fell outside acceptable professional
standards or treatment practices; or (3) the person executing the affidavit does
not meet the requirements of N.J.S.A. 2A:53A-41 or have appropriate licensure.
N.J.S.A. 2A:53A-27.
The record establishes that plaintiff is profoundly disabled. He is unable
to move independently and cannot even write his own name. He filed his pro se
complaint and case information (CIS) statement before the statute of limitations
expired and served the summons, complaint, and CIS on Alaris in a timely
fashion. Alaris filed an answer to the complaint in less than four months.
According to the trial court, the only basis for dismissal was plaintiff's failure
to file a proof of service in a timely fashion. Alaris has not established that
plaintiff's delay in moving for reinstatement prejudiced its ability to
substantively defend the action due to the loss of evidence or witnesses.
Notably, Rule 1:13-7(a) does not impose a time limitation for moving to
reinstate in single defendant cases. Although the reinstatement motion was filed
almost two years after the dismissal, our courts have granted reinstatement in
cases, absent proof of prejudice to the defendant, where the delay was
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significant. See e.g., Giannakopoulos, 438 N.J. Super. at 608-09 (more than one
year); Baskett, 422 N.J. Super. at 384-85 (thirty-three months); Ghandi, 390 N.J.
Super. at 195, 197-98 (fifteen months).
Unlike in Czepas, plaintiff did not intentionally delay filing his
reinstatement motion for strategic reasons. There is no evidence that he waited
to file the motion to gain additional time to obtain an affidavit of merit. Indeed,
because the complaint was dismissed before Alaris filed its an answer, the case
was not scheduled for a Ferreira3 conference to resolve any affidavit of merit
issues. Moreover, the court had not yet implemented "electronic notification of
the affidavit of merit filing obligation and the Ferreira conference scheduling so
that courts and parties do not overlook them." Pressler & Verniero, cmt. 5.5.4
on R. 4:5B-4. Consequently, plaintiff, who was pro se at that point, may well
have been unaware that he is required to serve an affidavit of merit.
The purpose of the Affidavit of Merit Statute is to "weed out frivolous
lawsuits early in the litigation while, at the same time, ensuring that plaintiffs
with meritorious claims will have their day in court." Ferreira, 178 N.J. at 150
3
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). Trial courts
must conduct "an accelerated case management conference . . . within ninety
days of the service of an answer in all malpractice actions" to resolve "discovery
related issues, such as compliance with the Affidavit of Merit statute." Id. at
154; see R. 4:5B-4(a) (same).
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(citing Hubbard v. Reed, 168 N.J. 387 (2001)). This case was dismissed before
plaintiff was required to serve an affidavit of merit. To be sure, there was no
consideration of the merits of plaintiff's cause of action, nor could there have
been at the time the complaint was administratively dismissed.
In the context of this case, we view the purpose of Rule 1:13-7(a) to be
distinctly different than the purpose of the Affidavit of Merit Statute. Because
the case was administratively dismissed before Alaris filed its answer , the
parties did not engage in discovery. In fact, plaintiff claims he does not even
possess his complete medical records compiled by Alaris.
We conclude that "principles of equity and the essential goal of the
[Affidavit of Merit Statute]—to eliminate frivolous lawsuits—are not advanced
by dismissing the complaint." Ferreira, 178 N.J. at 153. Instead, we deem
reinstatement of the complaint, subject to plaintiff meeting the requirements of
the statute, to be equitable and appropriate. "Plaintiff should not be denied the
opportunity to have [his] facially valid claim move forward and be addressed on
its merits." A.T. v. Cohen, 231 N.J. 337, 350 (2017).
We further conclude that plaintiff established good cause for
reinstatement of his complaint. The record demonstrates no prejudice to Alaris
and no ulterior motive on the part of plaintiff. As noted, plaintiff was pro se and
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profoundly disabled. Under these unique circumstances, we find that this case
does not involve the type of fault contemplated by Rule 1:13-7(a).
Reverse and remanded. We do not retain jurisdiction.
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