                                 NOT FOR PUBLICATION WITHOUT THE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-3603-16T4

JULIANA IHEME,

           Plaintiff-Appellant,

v.

BJ's WHOLESALE CLUB INC.,

     Defendant-Respondent.
________________________________

                    Argued October 15, 2018 – Decided December 6, 2018

                    Before Judges Sumners and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-1155-14.

                    Eric G. Kahn argued the cause for appellant (Javerbaum
                    Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys;
                    Eric G. Kahn, of counsel; Annabelle M. Steinhacker, on
                    the brief).

                    Christopher B. Block argued the cause for respondents
                    (Marshall Dennehey Warner Coleman & Goggin,
                    attorneys; Walter F. Kawalec, III, on the brief).

PER CURIAM
      Plaintiff Julia Iheme appeals from the trial court's order denying her

motion to reinstate her complaint. We reverse and remand.

      Plaintiff filed a complaint against defendant BJ's Wholesale Club, Inc.

("BJ's") on March 14, 2014, alleging she was injured on defendant's premises in

July 2012.    In December 2014, after not receiving responses to discovery

requests, defendant inquired about the status of its requests. Plaintiff did not

respond to the discovery requests. Subsequently, defendant filed a motion to

dismiss the complaint without prejudice for failure to respond to discovery

demands, pursuant to Rule 4:23-5.

      Prior to the return date, plaintiff supplied all outstanding discovery and

defense counsel contacted the motion judge to withdraw the motion.

Nonetheless, on February 20, 2015, the judge inadvertently dismissed plaintiff's

complaint without prejudice. Thereafter, the parties submitted a consent order

vacating the order dismissing plaintiff's complaint, but it was returned for failure

to file the $300 reinstatement fee.

      On February 24, 2017, plaintiff filed a motion to reinstate the complaint,

which included the $50 filing fee as well as the $300 reinstatement fee.

Defendant opposed the motion to reinstate, arguing that it would be prejudiced

because some of the employees who worked at BJ's in 2012 no longer work for


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                                         2
the company and because the way it handles claims and investigations has

changed since 2012. Plaintiff's counsel explained that the delay in bringing the

motion to reinstate was due to his illness and the illness of his secretary.

Plaintiff's counsel had thyroid tumors removed in 2015 and his secretary was

unable to continue working due to severe lupus symptoms that arose

contemporaneously.

      On March 17, 2017, the trial court denied plaintiff's motion to reinstate

the complaint. The trial court wrote on the order that plaintiff lacked "due

diligence in moving to restore [the complaint] for over [two] years" and that the

delay "resulted in prejudice to the defendant." The trial court also utilized a

"good cause" standard and found that plaintiff did not show good cause to

reinstate the complaint. This appeal ensued.

      "The decision to deny a motion to reinstate a complaint dismissed for

failure to provide discovery lies within the discretion of the motion judge."

A&M Farm & Garden Ctr. v. Am. Sprinkler Mech., LLC, 423 N.J. Super. 528,

534 (App. Div. 2012) (citations omitted). Thus, we should not reverse a denial

of a motion to reinstate unless the motion judge abused her discretion. Sullivan

v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (2008) (citing Cooper

v. Consol. Rail Corp., 391 N.J. Super. 17, 22-23 (App.Div.2007)). We should


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                                       3
"decline[ ] to interfere with [such] matters of discretion unless it appears that an

injustice has been done." Ibid. (alterations in original). 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. Immigr. and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

      Rule 4:23-5 states,

            If a demand for discovery pursuant to R. 4:17, R. 4:18,
            or R. 4:19 is not complied with . . . , the party entitled
            to discovery may . . . move, on notice, for an order
            dismissing or suppressing the pleading of the
            delinquent party. . . . Unless good cause for other relief
            is shown, the court shall enter an order of dismissal or
            suppression without prejudice. . . . The delinquent party
            may move on notice for vacation of the dismissal or
            suppression order at any time before the entry of an
            order of dismissal or suppression with prejudice.

Rule 4:23-5 does not contemplate an automatic conversion of dismissal without

prejudice to dismissal with prejudice, and does not impose a time constraint for

moving to reinstate a complaint dismissed without prejudice. See Sullivan, 403

N.J. Super. at 93-94, 96; Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2

on R. 4:23-5 (2019) ("The defaulting party's opportunity to move for restoration

does not terminate on the 90th day following entry of the order dismissing

without prejudice. Rather, the defaulting party may make that motion at any

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                                         4
time up until the entry of an order dismissing with prejudice pursuant to

paragraph (a)(2)."). "Good cause" is not the standard by which courts should

decide whether to reinstate a complaint under Rule 4:23-5. See Sullivan, 403

N.J. Super. at 94. Rather, "good cause" is the standard that applies to the motion

to dismiss without prejudice. Adedoyin v. Arc of Morris Cty. Chapter, Inc., 325

N.J. Super. 173, 180 (App. Div. 1999).

      Here, plaintiff made a motion to reinstate her complaint after it was

inadvertently dismissed without prejudice.       Plaintiff cured her discovery

delinquency shortly before the order dismissing without prejudice was entered

in 2015. In the two years that the dismissal without prejudice was in place,

defendant did not make a motion to dismiss with prejudice under Rule 4:23-5

because it could not. See R. 4:23-5(b) (stating that a party may move to dismiss

with prejudice if the delinquent party does not cure its discovery defect). Thus,

plaintiff makes her motion to reinstate pursuant to Rule 4:23-5(a), which does

not impose a time constraint. See Sullivan, 403 N.J. Super. at 93-94, 96; Pressler

& Verniero, cmt. 1.2 on R. 4:23-5.

      The rule also does not utilize a "good cause" standard for reinstatement.

See Sullivan, 403 N.J. Super. at 94. Thus, the trial court relied on the incorrect

standard in denying plaintiff's motion to reinstate the complaint. See ibid.


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                                         5
Because the trial court denied plaintiff's motion to reinstate for failure to

demonstrate "good cause" and for lacking "due diligence in moving to" reinstate

the complaint, we find that the trial court's denial of plaintiff's motion to restore

the complaint was a mistaken exercise of its discretion. See Flagg, 171 N.J. at

571.

       With respect to prejudice, "[t]he principal concern [is] . . . the defendant's

ability to present a defense on the merits." State v. One 1986 Subaru, 120 N.J.

310, 315 (1990) (quoting Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 345

(1984)). In Baskett v. Cheung, 422 N.J. Super. 377, 384 (App. Div. 2011), the

Appellate Division rejected a defendant's claim of prejudice where the defendant

claimed that it was "prejudiced by the passage of time." There, the party

claiming prejudice argued that witnesses' memories "clearly have faded," and

that it would not be able to obtain depositions from any of the plaintiffs. Id. at

384-85. The Appellate Division found the claims to be "generalities" and

"conjectures." Ibid.

       Here, defendant has not demonstrated that it would experience prejudice

by reinstating plaintiff's complaint. Defendant claims that it is prejudiced by

the passage of time because the person who originally managed the claim no

longer works for the company and because it would be unable to conduct an


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                                          6
investigation into the claim because of the "usual turnover in the retail business."

However, defendant fully investigated the claim, starting on the date of the

incident by preparing and incident report, by propounding and receiving

plaintiff's answers to interrogatories prior to the return date of the motion to

dismiss, and by taking plaintiff's deposition four months after the complaint was

dismissed without prejudice. Defendant at oral argument could not articulate

what further investigation would have been pursued in this routine fall down

case. Defendant merely lists "generalities" and "conjectures" about potential

difficulties with discovery. Baskett, 422 N.J. Super. at 384-85.         However,

defendant has not offered "a scintilla of evidence . . . to suggest that anything in

this parade of horribles exists or is likely to come to pass." Id. at 385. Thus,

defendant has not demonstrated that it has or will experience prejudice if

plaintiff's complaint were reinstated.

      For these reasons, we reverse and remand for proceedings in accordance

with this opinion. We do not retain jurisdiction.




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