MARK NEWTON VS. CITY OF NEWARK (L-6777-11, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0764-14T2
MARK NEWTON, ANDREA NEWTON,
QADIR NEWTON and QAWI NEWTON,
Plaintiffs-Appellants,
v.
CITY OF NEWARK, NEW JERSEY,
Defendant-Respondent,
and
MAYOR COREY BOOKER, WESTWARD
COUNCILMAN RONALD RICE, JR.,
ANNETTE WILLIAMS NEWARK POLICE DEPT.
DIRECTOR, SAMUEL DIMEO, CHIEF SHEILAH
COLEY, CAPT. "DOE" CLARK, CAPT. SETEVEN
YABLONSKY, LT. FELIX COMLON, LT. CHARLES
ZISER, LT. STEVEN YURIK I.D. NO. 6480, LT.
WILLIAM MEHALARIS I.D. NO. 7131, LT.
CARLOS FIGUEROA I.D. NO. 6522, LT.
DARRYL MARTIN I.D. NO.7462, LT.
FREDDIE HILL, SGT. RAZOHN EURE, SGT.
"ROE" LOPEZ, SGT. FRANK ROSSI I.D. NO.
6627, SGT. ANTHONY GIBSON I.D. NO 7121,
SGT. JOAO CARVALHO I.D. NO. 9303, SGT.
"DOE" WHITTAKER, SGT. "DOE" PEREIRA,
SGT. SCOTT SAYRE, SGT. ELLEN MCMILLAN
I.D. NO. 6529, SGT. AL TARIQ DUNSTON,
MATTHEW MILTON I.D. NO. 7992, DET. KARIMA
HANNIBAL I.D. NO. 9058, DET. MIGUEL
SANABRIA, JR. I.D. NO. 8013, DET. "DOE"
MARQUES, DET. "DOE" WEBER, DET. MARK
OLMEDA I.D. NO. 8013, DET. MARK SUREZ,
DET. GERARD PIACENZA, DET. LARRY COLLINS,
DET. JOSE PEREZ, DET. ALOMA WRIGHT, P.O.
TIMOTHY HART, P.O. MARIBEL SANTIAGO I.D.
NO 9900, P.O. EDWIN GONZALEZ, P.O. DARELL
GRAHAM, P.O. GEORGE MENDEZ I.D. NO. 6490,
P.O. "DOE" BUMANLAG, P.O. CARLOS ORBE,
P.O. "DOE" FIGUEROA, P.O. "DOE" MARQUES,
P.O. "DOE" GONZALEZ, P.O. "DOE" ZAMORA,
P.O. TREMAYNE PHILLIPS, I.D. NO. 9891,
P.O. JOSEPH WATSON I.D. NO. 6497, P.O.
WILLIE WINNS I.D. NO. 7282, P.O. ANDREE
NELSON I.D. NO. 7266, P.O. "DOE"
HANCOCK I.D. NO. 7593, P.O. "DOE" RICH,
I.D. NO. 1382, P.O. "DOE" MURPHY, I.D. NO.
2310, THE NEWARK FIRE DEPT., CHIEF JAMES
STEWART, DEPT. OF NEIGHBORHOOD SERVS.,
DIV. OF CODE ENFORCEMENT EMPLOYEES, AMOS
CRUDUP, NORMAN DAIS, and CITY OF NEWARK,
DIV. OF WATER,
Defendants.
_________________________________________
Argued August 15, 2017 – Decided August 22, 2017
Before Judges Manahan and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-
6777-11.
Mark Newton, appellant pro se.
Steven F. Olivo, Assistant Corporation Counsel,
argued the cause for respondent (Kenyatta K.
Stewar, Acting Corporation Counsel, attorney;
Mr. Olivo, of counsel and on the brief.
PER CURIAM
Plaintiffs Mark Newton, Andrea Newton, Qadir Newton, and Qawi
Newton (collectively plaintiffs) appeal from a July 25, 2014 Law
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Division order denying an application seeking restoration of their
complaint. We affirm.
We summarize the following facts and procedural history
relevant to our determination from the limited record. Plaintiffs
filed the complaint on August 16, 2011, in the Law Division. The
complaint was dismissed on March 2, 2012, by the Law Division's
Central Processing Unit as non-conforming. Plaintiffs filed a
subsequent complaint and Order to Show Cause (OTSC) on May 17,
2012, which was hand-delivered to defendant City of Newark (City).
The City appeared before the court on May 18, 2012, regarding
plaintiffs' complaint, specifically plaintiffs' conflict with
their neighbors.1 Consequently, the court reinstated the complaint
and set the OTSC returnable on May 31, 2012.
The City filed an answer to the complaint and OTSC on May 24,
2012. On June 13, 2012, the court convened a plenary hearing, at
which plaintiffs Mark Newton and Andrea Newton testified. 2 On
August 24, 2012, the court denied plaintiffs' OTSC, noting in its
statement of reasons that even if the allegations against defendant
Newark Police Department were proven, there would be no compensable
damages available to plaintiffs. When no further action was taken
1
Plaintiffs no longer reside at the property.
2
A transcript of the proceeding has not been provided to this
court.
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after issuance of the August 24 order, the complaint was
administratively dismissed on November 3, 2012.
On November 23, 2012, plaintiffs moved to reinstate the
complaint without serving the motion on the City. The court
granted plaintiffs' motion on December 11, 2012. As plaintiffs
did not serve the City with the order, the City did not file a
responsive pleading to the reinstated complaint. This resulted
in an additional administrative dismissal on April 13, 2013.
On June 13, 2013, plaintiffs again moved to reinstate the
complaint. The court granted plaintiffs' motion on July 12, 2013.
In an accompanying letter to plaintiffs and the City, the court
stated that if plaintiffs continually failed to serve orders on
opposing parties or to file proof of service pursuant to Rule 4:4-
7, the complaint would be dismissed.
On October 22, 2013, plaintiffs filed a motion seeking both
reinstatement of the complaint and a judgment by default pursuant
to Rule 4:43-2. By letter dated November 7, 2013, the City
informed the court that they never received the motion papers.
The City's counsel submitted a certification in opposition to the
motion stating that the City was not properly served. On November
22, 2013, the court, finding improper service by plaintiffs on the
City, denied plaintiffs' motion.
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On June 23, 2014, plaintiffs again moved to reinstate the
complaint. On July 25, 2014, the court denied the motion. In a
letter to plaintiffs and the City, the court stated that it "denied
the motion because it is far from clear to the court that the
[City has] been properly served." This appeal followed.
Plaintiffs raise the following arguments on appeal:
POINT I
ALL DEFENDANTS THROUGH THEIR COUNSEL NMCC
CONTUMACIOUSLY REFUSED TO FILE THEIR CIVIL
CASE INFORMATION STATEMENT AND ANSWER WITH THE
CLERK OF THE LAW DIVISION AND FOR THIS REASON
THE ADMINISTRATIVE DISMISSALS ENTERED BY THE
CLERK OF THE LAW DIVISION MUST BE VACATED AND
THE MATTER RESTORED TO THE ACTIVE TRIAL
CALENDAR.
[A.] The Law Division Judge James
Rothschild Jr. Committed Plain And
Reversible Error By Deliberately
And [Purposely] Refusing To
Transmit Defendants' Answer To The
Clerk Of The Law Division Or
Otherwise Directing His Staff To
File Defendants' Answer With The
Clerk Of The Law Division And For
This Reason The Administrative
Dismissals Entered By The Clerk Of
The Law Division Must Be Vacated And
The Matter Restored To The Active
Trial Calendar.
POINT II
DESPITE PLAINTIFFS HAVING FILED A
"CERTIFICATION" PURSUANT TO R. 4:4-7 IN JUNE
2013[, CLEARLY] DEMONSTRATING THAT SERVICE OF
PLAINTIFFS' COMPLAINT HAD BEEN MADE UPON
DEFENDANTS[,] THE CLERK OF THE LAW DIVISION
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CONTINUED ISSUING ORDERS THAT
ADMINISTRATIVELY DISMISSED PLAINTIFFS'
COMPLAINT WHICH CONDUCT FURTHER VIOLATED
PLAINTIFFS' RIGHTS TO DUE PROCESS OF LAW AND
FOR THIS REASON AS A MATER OF LAW[,] THE ORDER
ENTERED BY THE CLERK ADMINISTRATIVELY
DISMISSING PLAINTIFFS' COMPLAINT AS WELL AS
THE ORDER ENTERED BY THE LAW DIVISION REFUSING
TO RESTORE PLAINTIFFS' COMPLAINT MUST BE
REVERSED.
[A.] Thereafter The "Wholly
Improper And Improvident
Administrative Dismissal Of
Plaintiffs' Complaint" In November
2013, The Clerk Of The Law Division
Failed To Provide Plaintiffs With A
Written Notice [Advising] Of The
Dismissal Which Conduct Violated
The Mandates Of R. 1:13-7(A) As Well
As Plaintiffs' Rights To Due Process
Of Law And For This Reason As A
Matter Of Law[,] The Order Entered
By The Law Division Refusing To
Restore Plaintiffs' Complaint To
The Active Trial Calendar Must Be
Reversed.
POINT III
THE LAW DIVISION JUDGE JAMES ROTHSCHILD JR.
COMMITTED PLAIN AND REVERSIBLE ERROR BY
DENYING PLAINTIFFS' APPLICATION SEEKING THE
ENTRY OF A DEFAULT REGARDING ALL DEFENDANTS
AND REFUSING TO REINSTATE PLAINTIFFS'
COMPLAINT "NUN[C] PRO TUNC" AS A DIRECT RESULT
OF JUDGE ROTHSCHILD'S REFUSAL TO TRANSMIT
DEFENDANTS ANSWER TO THE CLERK OF THE LAW
DIVISION FOR FILING AND DEFENDANTS' COUNSELS'
CONTUMACIOUS REFUSAL TO FILE THE CASE
INFORMATION STATEMENT AND ANSWER DIRECTLY WITH
THE DEPUTY CLERK OF THE LAW DIVISION IN
ACCORDANCE WITH R. 1:5-6(A)(1).
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Having considered the record before us and in application of
our standard of review, we conclude that plaintiffs' arguments
lack sufficient merit as to require discussion in a written
opinion. R. 2:11-3(e)(1)(E). We add only the following.
We review an order denying reinstatement of a complaint under
the abuse of discretion standard. Weber v. Mayan Palace Hotel &
Resorts, 397 N.J. Super. 257, 262 (App. Div. 2007). While the
"abuse of discretion standard defies precise definition," we may
find an abuse of discretion when a decision is "made without a
rational explanation, . . . rest[s] on an impermissible basis,"
or was "based upon a consideration of irrelevant or inappropriate
factors." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)
(quoting Achacoso-Sanchez v. Immigration & Naturalization Serv.,
779 F.2d 1260, 1265 (7th Cir. 1985); State v. Baynes, 148 N.J.
434, 444 (1997)).
Rule 1:13-7(a) permits reinstatement of a complaint "on
motion for good cause shown." In Ghandi v. Cespedes, we explained:
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. 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
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prejudice. 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.
[390 N.J. Super. 193, 196 (App. Div. 2007)
(citations and internal quotation marks
omitted).]
Here, despite being presented with the opportunity on several
occasions to "cure the problem" that led to the administrative
dismissals of the complaint, plaintiffs engaged in a pattern of
obstinate refusal to abide by the notice requirements per Rule
1:6-2(a) and Rule 1:6-3(a)(c), and the service requirement of Rule
4:4-4. Further, plaintiffs chose to ignore the advisement provided
by the court that their failure to abide by the notice and service
requirements would continue to result in dismissal of the complaint
after its reinstatement.
Given the above, we conclude that the court not only did not
abuse its discretion, it exercised sound discretion in denying
reinstatement of the complaint.
Affirmed.
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