SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4770-18T3

JORGE E. CALVACHE and

SHIRLEY M. CALVACHE,

Plaintiffs-Appellants,

v.

WERNER ENTERPRISES,

INC.,

Defendant-Respondent,

and

FABIAN M. PEART, 

Defendant.

_________________________

Argued telephonically July 14, 2020 –

Decided July 29, 2020

Before Judges Sabatino and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Docket No. L-2579-16.

NOT FOR PUBLICATION WITHOUT THE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.
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Glenn Anthony Farrell argued the cause for appellants 

(Calcagno & Associates, attorneys; Glenn Anthony

Farrell, on the briefs).

Jonathan C. Springer argued the cause for respondent

(Salmon Ricchezza Singer & Turchi, LLP attorneys; 

Jeffrey A. Segal and Jonathan C. Springer, on the brief).

PER CURIAM

Plaintiffs Jorge E. Calvache and Shirley M. Calvache, husband and wife, 

appeal two trial court orders denying their motion to reinstate their complaint in 

this personal injury case after it was dismissed under Rule 1:13-7(a) for lack of 

prosecution. Plaintiffs' reinstatement motion was filed almost five years after 

the subject accident and over two years after the court dismissed their complaint. 

Applying the deferential standard of review that governs trial court rulings on 

reinstatement motions, we affirm.

According to their complaint, plaintiffs were involved in a motor vehicle 

accident on July 16, 2014, when a commercial vehicle driven by defendant 

Fabian M. Peart struck plaintiffs' vehicle while attempting a lane change. 

Plaintiffs were both injured in the collision. They retained a law firm to 

represent them in this personal injury case. On July 15, 2016, a day before the 

two-year statute of limitations ran, plaintiffs' law firm filed this civil action in 
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the Law Division in Passaic County against Peart and his then employer, Werner 

Enterprises. The complaint also named fictitious defendants.

Because plaintiffs had not made service on either named defendant, the 

court administratively dismissed the case in February 2016 for lack of 

prosecution, pursuant to Rule 1:13-7(a). Fifteen months later in May 2018, 

plaintiffs served Werner Enterprises with the summons and complaint. 

Plaintiffs have never made service on Peart, apparently because they have not 

located him.

Plaintiffs took no further action concerning the lawsuit until March 2019, 

when their counsel moved to reinstate the complaint. According to the 

supporting certifications, plaintiffs' designated trial attorney and his law firm 

have been overwhelmed by numerous personal and business problems. 

Although we need not elaborate on all of those difficulties here, they included 

the death of counsel's brother, the serious illness of his father, the defection of 

several attorneys from his law firm, and the office manager's unexpected leave 

of absence. The certifications do not indicate whether the law firm explored the 

possibility of referring the case to a different firm while its operations were 

impaired.
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After considering plaintiffs' submission and opposition from Werner 

Enterprises, the trial court denied the reinstatement motion. The motion judge 

notated the following reasons in the denial order:

Application is denied. It is unfortunate that Plaintiffs’ 

counsel had issues with a family member’s health but 

that does not excuse this matter being ignored for over 

two years. The reasons set forth wh[ile] unfortunate do 

not constitute exceptional circumstances.

Plaintiffs moved for reconsideration. Again, defendant opposed the 

belated reinstatement of the complaint. The trial court denied this motion as 

well, noting the following comments on the denied order:

Application denied. This is one of many cases where 

cases were dismissed for failure to provide discovery, 

failure to prosecute and a myriad of other reasons. The 

court has reinstated some of the dismissed cases but it 

is a case by case analysis. I[n] this case applicant has 

failed to show that the court's decision was based on 

plainly incorrect reasoning or that the court failed to 

consider evidence.

We learned at oral argument on the appeal that this order's reference to 

other "dismissed cases" refers to several other reinstatement motions that had 

been filed by the law firm in other matters in this vicinage. As noted in the 

reconsideration denial, the trial court performed a "case by case analysis" of the 

circumstances in these matters and apparently reinstated some but not all of 

them.
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The present appeal ensued.

The applicable legal standards are clear. Rule 1:13-7(a) specifies that in 

"multi-defendant actions in which at least one defendant has been properly

served," an opposed motion to reinstate a case dismissed for lack of prosecution 

"shall be granted only on a showing of exceptional circumstances." Ibid. A less 

stringent standard of "good cause" applies only if the motion to reinstate is filed 

within ninety days of the dismissal. Ibid. Here, plaintiffs' motion to reinstate 

was filed more than two years after the case was dismissed, long after the ninetyday "good cause" period ended.

We reject plaintiffs' argument that the trial court should have applied a 

"good cause" standard here because only one defendant has appeared so far in 

this case. The Rule explicitly adopts the more stringent standard for 

reinstatement where, as here, the case is a multi-defendant action "in which at 

least one defendant has been properly served." Ibid. It is inconsequential that 

the unserved co-defendant, Peart, was apparently an employee or agent of 

Werner Enterprises. It cannot be presumed that the interests of those codefendants are synonymous. They are two distinct named parties.
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Moreover, the Rule is explicit about how the court must analyze the matter

if at least one defendant has been served. Ibid. The "exceptional circumstances" 

test applies.1 

Although the death or health emergencies of counsel or counsel's family 

members may qualify as exceptional circumstances, see O'Donnell v. Ahmed, 

363 N.J. Super. 44, 51 (Law Div. 2003), such unfortunate events do not justify 

indefinite relaxation of compliance with the court rules. In addition, recurring 

problems with staff generally are insufficient to justify extensions of time. 

Rodriguez v. Luciano, 277 N.J. Super. 109, 112-13 (App. Div. 1994).

The scope of review is critical to this appeal. We must 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 

 

1 During questioning counsel during oral argument on the appeal, plaintiffs' 

counsel represented to us that he would be willing to dismiss co-defendant Peart 

in order to take advantage of the more lenient "good cause" standard for 

reinstatement. We have pondered that representation and conclude it would be 

inappropriate to alter the applicable standard on appeal retroactively by revising 

the pleadings at this late juncture. 
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(2002) (quoting Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir. 

1985)). Guided by that scope of review here, we are unpersuaded the motion 

judge abused his discretion in denying the motion for reinstatement and the 

ensuing motion for reconsideration.

The application of the "exceptional circumstances" test must be evaluated

on a case-by-case basis. Here, the motion judge had the special opportunity and 

perspective to evaluate a range of dismissed cases that had been presented for 

relief by the same law firm. In the judge's assessment, the present case was 

comparatively too far down the spectrum of those cases to warrant 

reinstatement. Nearly five years had passed since the subject accident, the 

allegedly responsible driver had not been found and served, plaintiff's medical 

status could possibly have changed, and defendant's access to medical records 

of any previous treatment might not have been assured. The prospects for 

prejudice in defending this stale case are not purely conjectural.

In sum, although the circumstances of plaintiffs' attorney and his law firm 

were surely sympathetic, we are unpersuaded the motion judge's assessment was 

so "wide of the mark" to compel appellate interference. Flagg, 171 N.J. at 568. 

The decision fell within the zone of discretion. It is not our role to second-guess 

that determination and impose what we might have done instead.
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Affirmed.