FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Glenn B. Slater appeals from the Law Division's order of May 28, 2010 denying his motion for reconsideration. We have considered the arguments plaintiff has raised in light of the record and applicable legal standards. We reverse.
On February 6, 2009, plaintiff filed a pro se complaint in the Law Division in Passaic County against "Captain David Hardin, Individually and as Captain of West Milford Police Department, West Milford Township, Joan Waks, Esq., Individually and Waks & Mecky, a Corporation, Janet Sciorra, Chief James Dykstra of the West Milford Police Department, [the] Passaic County Prosecutor's office & John & Jane Does 1-10." The complaint alleged that on October 1, 2002, Hardin, "while acting under the color of state law . . . abused his power by refusing to follow a court order, refusing to arrest tres[]passers, and following another court order that had been denied in full." Plaintiff also claimed that Waks "intimidat[ed]" Hardin into committing these acts, West Milford "failed to properly train their officers," Sciorra "illegally pocket[ed] over [$]200,000. . . in rental income along with trespassing," Dykstra failed "to stop the criminal actions of . . . Hardin," and the prosecutor's office "allow[ed] [and] encourage[ed] . . . Hardin[]."
Hardin, Dykstra and West Milford (collectively, defendants) answered the compliant on May 26, 2009.1 Thereafter, venue in the case was transferred to Bergen County, however, neither party was apparently aware of this until October 2009 when defendants sought a consensual 60 day extension of discovery. Discovery was extended and eventually a trial date of March 15, 2010 was set.
On February 2, 2010, defendants moved to dismiss the complaint alleging plaintiff's interrogatory answers were inadequate. Plaintiff filed opposition and cross-moved to re-open discovery and compel production of certain documents by defendants.
On March 1, the matter was scheduled for a mandatory, court-ordered settlement conference. Defendants appeared but plaintiff did not. On March 8, the judge entered an order dismissing the complaint without prejudice pursuant to Rule 4:37-2(a).
Plaintiff moved to reinstate the complaint. In his certification, he claimed that he filed a motion to enforce litigant's rights in February in Passaic County.2 Plaintiff further certified that he was unaware the settlement conference "was still . . . to be heard . . . [because] he believed that the motion to enforce litigants [sic] rights . . . would over step the settlement conference." Plaintiff also certified that he was "very confused as no one was informed of the venue change, and no one had motioned for a venue change." Plaintiff offered to pay defense counsel's costs for appearing at the settlement conference.
The appellate record fails to indicate whether the motion was opposed, however, ACMS indicates that no opposition was filed. On April 19, the judge denied plaintiff's motion to reinstate his complaint. A hand-written notation on the order provided: "[S]tatute of limitations has run . . .; see Rivera v. Prudential[,] 104 [N.J.] 32 [(1986)]."
Plaintiff moved for reconsideration and requested oral argument. ACMS indicates that defendants filed no opposition, and the appellate record contains none. Plaintiff reiterated the facts regarding the change of venue and his confusion based upon the pending motion, the March 1 settlement conference, and the trial date shortly thereafter. Plaintiff also noted that the April 19 order, in which the judge indicated the complaint was time-barred, "was the first mention of being out of time that [h]e encountered." Plaintiff argued his claim was "a continuous tort action," and, presumably, not barred by the two-year statute of limitations. See N.J.S.A. 2A:14-2(a).
We cannot ascertain whether oral argument took place on the return date, May 28. The record does not contain any transcript and the judge's order and accompanying statement of reasons do not reflect that oral argument occurred.3 After citing relevant case law, the judge concluded:
[I]t is clear that the Court did not overlook or fail to give enough weight to any fact previously submitted in the original motion. Further, nothing indicates that the Court acted in an arbitrary, capricious, or unreasonable manner. The Court finds that the defendant [sic] has not offered any additional new evidence or persuasive arguments to overturn the Court's decision. Instead, Defendants [sic] merely reiterate the same arguments previously presented to the Court during the March 14, 2010 oral argument in which this Court dismissed the Complaint as untimely under the Statute of Limitations.
This Court finds that the claims filed against the Defendants, clearly require a timely filing pursuant to the applicable Statute of Limitations. Plaintiff has not offered a legally sufficient rationale for failing to serve the Defendants within the applicable time limitations under the New Jersey Court Rules.
Plaintiff filed a timely appeal from this order.
Generously interpreted, plaintiff's brief argues his motion for reconsideration should have been granted because his complaint alleged "a continuous tort," there was confusion regarding the court dates and the change of venue, and because he was "not out of time." Defendants contend the complaint was properly dismissed pursuant to Rule 4:37-2(a) or because plaintiff failed to comply with discovery pursuant to Rule 4:23-5, or because the complaint "fails utterly to state a claim." Defendants also argue that the statute of limitations had run, and the judge did not abuse his discretion by denying plaintiff's reconsideration motion.
Initially, we note that defendants never moved to dismiss the complaint for failure to state a claim, Rule 4:6-2(e), and never sought its dismissal pursuant to the applicable statute of limitations. It is inherently unfair to permit the dismissal of plaintiff's complaint for these reasons when they were never asserted before the Law Division judge and plaintiff was never on notice and provided an opportunity to respond. Having said that, we express no opinion about the merit of plaintiff's "continuous tort" theory regarding the statute of limitations defense. Plaintiff's complaint alleged at its core an event that occurred in 2002, more than six years before the complaint was filed. Defendants are free to file an appropriate motion in the Law Division.
Nor does plaintiff's alleged discovery violations provide a basis for what occurred. Defendants' motion to dismiss for failure to provide adequate answers to interrogatories was never decided because the dismissal order, based on plaintiff's failure to attend the settlement conference, intervened. Even if defendants' discovery motion were considered meritorious, the appropriate remedy would have been to compel plaintiff to provide responsive answers. See Adedoyin v. Arc of Morris Cnty. Chapter, Inc., 325 N.J.Super. 173, 180-81 (App. Div. 1999) ("[I]ncomplete answers can not be automatically considered as a failure to answer under R. 4:23-5. . . . [W]here interrogatory answers are received before the return date of the motion to dismiss without prejudice, the party entitled to the answers cannot control the future course of the proceeding simply by asserting that the answers were not fully responsive."). Moreover, even if the complaint was dismissed because of the alleged discovery violation, plaintiff was entitled to cure the defect and reinstate the complaint upon motion. See R. 4:23-5(a)(1).
Rule 4:37-2(a) provides:
For failure of the plaintiff to . . . comply with these rules or any order of court, the court in its discretion may on defendant's motion dismiss an action or any claim against the defendant. Such a dismissal shall be without prejudice unless otherwise specified in the order.
We note initially that "[t]he procedural dismissal of a cause. . . is not a favored remedy and lesser sanctions should be imposed whenever practical." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:37-2(a) (2011). In any event, the dismissal was by the terms of the order and the Rule, without prejudice.
In denying plaintiff's motion to reinstate, the judge cited Rivera, supra, and concluded the "[s]tatute of limitations ha[d] run." If by this notation he meant that plaintiff's 2009 filing was time-barred by N.J.S.A. 2A:14-2(a), for the reasons already expressed, the judge was mistaken. In other words, defendants did not move to dismiss the complaint, see, e.g., Zaccardi v. Becker, 88 N.J. 245, 256 (1982) (noting that "statutes of limitations are not self-executing"), and plaintiff was not on notice that his motion to reinstate the complaint because he failed to appear at a settlement conference would trigger substantive consideration of this affirmative defense.
Moreover, Rivera is inapposite to the facts presented. The complaint at issue in Rivera was the second complaint the plaintiffs filed, and it was filed after the statute of limitations had run. Rivera, supra, 104 N.J. at 35-37; see also Mason v. Nabisco Brands, Inc., 233 N.J.Super. 263, 269 (App. Div. 1989) (where we held "Rivera [is not] applicable to this case because plaintiffs here did not institute a second lawsuit, but, rather, obtained the court's permission to reinstate the original complaint"). In short, Rivera provides no independent basis to have denied the motion to reinstate the complaint.
We therefore must consider whether given the above factual and procedural history, the judge mistakenly exercised his discretion by not reconsidering denial of plaintiff's motion to reinstate. Before turning to the appropriate standard that guides our review, we note that in his statement of reasons, the judge concluded that "[p]laintiff has not offered a legally sufficient rationale for failing to serve the Defendants within the applicable time limitations under the New Jersey Court Rules." There is nothing in the record, nor have defendants asserted, that plaintiff failed to serve them within the appropriate service timeframes. Perhaps the judge was directing that conclusion only to the previously-entered, court-ordered dismissals of the complaint as to the other defendants. If so, we would agree that plaintiff has failed to explain why dismissal as to those defendants was not appropriate.
The judge also referenced oral argument that occurred on March 14, 2010, at which the complaint was dismissed as time-barred. Neither party has included a transcript from proceedings on March 14, there are no orders from that date, defendants have not argued that the judge reached the merits of the statute of limitations defense on that date, and ACMS does not reflect any court proceedings haven taken place on March 14.
Motions for reconsideration pursuant to Rule 4:49-2 are addressed to "`the sound discretion of the Court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J.Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch. Div. 1990)). Reconsideration is to be utilized narrowly and reserved for situations where the court relied "`on plainly incorrect reasoning[,]'" where the court failed to consider probative, competent evidence, or where "`there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J.Super. 159, 175 (App. Div. 2005). (emphasis omitted) (quoting Pressler, supra, comment 2 on R. 4:49-2 (2005)). Reconsideration should be exercised "`in the service of the ultimate goal of substantial justice.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J.Super. 408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).
Here, plaintiff sought to restore a complaint that was dismissed without prejudice because he failed to appear at a settlement conference. He offered to compensate defense counsel for his unnecessary appearance. Defendants never filed a substantive motion seeking dispositive relief, yet, that relief was granted as the result of the denial of plaintiff's initial motion and the further denial of his motion for reconsideration. We therefore are constrained to reverse and remand the matter to the Law Division for reinstatement of the complaint as to these defendants only.
Reversed and remanded. We do not retain jurisdiction.
