                                NOT FOR PUBLICATION WITHOUT THE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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                                          2
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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                                        3
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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                                           4
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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                                        5
      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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                                         6
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.




                                                                          A-2628-18T4
                                        7
      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


                                                                          A-2628-18T4
                                        8
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


                                                                           A-2628-18T4
                                         9
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

                                                                         A-2628-18T4
                                       10
            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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                                      11
             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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                                        12
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


                                                                         A-2628-18T4
                                       13
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).
                                                                          A-2628-18T4
                                       14
(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


                                                                          A-2628-18T4
                                       15
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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                                     16
