ESTATE OF LAURA CHRISTINE SEMPREVIVO VS. HASSAN LAHHAM (L-2343-18, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2505-19
    ESTATE OF LAURA
    CHRISTINE SEMPREVIVO
    by and through its administrator
    ad prosequendum, PATRICIA
    SEMPREVIVO, and PATRICIA
    SEMPREVIVO and RONALD                     APPROVED FOR PUBLICATION
    SEMPREVIVO in their                               May 11, 2021
    own rights,
    APPELLATE DIVISION
    Plaintiffs-Appellants,
    v.
    HASSAN LAHHAM,
    Defendant,
    and
    LIVIU HOLCA,
    Defendant-Respondent.
    Argued April 14, 2021 – Decided May 11, 2021
    Before Judges Fuentes, Whipple1 and Rose.
    1
    Judge Whipple did not participate in oral argument but joins the opinion
    with consent of the parties. R. 2:13-2(b).
    On appeal from the Superior Court of New Jersey,
    Law Division, Atlantic County, Docket No. L-2343-
    18.
    Rook E. Ringer (Lento Law Group, PC) of the Florida
    bar, admitted pro hac vice, argued the cause for
    appellants (Lento Law Group, PC, attorneys; Joseph
    D. Lento, on the briefs).
    Michael Heron argued the cause for respondent (Law
    Office of William L. Brennan, attorneys; William L.
    Brennan, of counsel and on the brief; Michael Heron,
    on the brief).
    The opinion of the court was delivered by
    ROSE, J.A.D.
    This appeal implicates the proper application and limitations of Rule
    1:13-7, long recognized as an administrative "docket-clearing rule that is
    designed to balance the institutional needs of the judiciary against the principle
    that a just result should not be forfeited at the hands of an attorney's lack of
    diligence." Baskett v. Kwokleung Cheung, 
    422 N.J. Super. 377
    , 379 (App.
    Div. 2011); see also Ghandi v. Cespedes, 
    390 N.J. Super. 193
    , 196 (App. Div.
    2007); Mason v. Nabisco Brands, Inc., 
    233 N.J. Super. 263
    , 267 (App. Div.
    1989).   Here, we address two issues:         (1) whether the good cause or
    exceptional circumstances standard applies for reinstatement of the complaint
    in a multi-defendant case, where no defendants have appeared in the case and
    participated in discovery; and (2) whether the rule empowers the trial court to
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    2
    dismiss a complaint with prejudice in response to a motion filed by the
    nondelinquent party.
    We conclude the trial court's misapplication of the exceptional
    circumstances standard under Rule 1:13-7 prevented adjudication of plaintiffs'
    claims on the merits. Thus, the trial court mistakenly exercised its discretion
    by denying plaintiffs' motion to reinstate their complaint. We further hold that
    Rule 1:13-7 neither empowers a trial court to dismiss a cause of action with
    prejudice nor authorizes a party in a case to affirmatively seek such a drastic
    sanction as a form of relief. Accordingly, we reverse and remand the January
    10, 2020 Law Division order so the matter can be decided on the merits.
    The genesis of this appeal is a medical negligence action filed on the eve
    of the statute of limitations deadline. Because this action was dismissed before
    either defendant answered the complaint or the parties engaged in the process
    of discovery, the underlying facts are not well developed. The procedural
    history is somewhat more protracted. We summarize the facts asserted in the
    complaint and the procedural history from the record before the trial court. 2
    2
    We decline defendant Liviu Holca's invitation to take judicial notice of facts
    set forth in his responding brief that are gleaned from an action filed by
    plaintiffs in federal court against other entities arising from the same incident.
    See N.J.R.E. 201(b)(4) (permitting judicial notice of "records" of a "federal
    court sitting for this state"). Holca did not append the pleadings from that
    action, referring us instead to the District of New Jersey's website. See
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    I.
    Laura Christine Semprevivo committed suicide on September 16, 2016.
    Some two years later, on September 17, 2018, her estate and Patricia
    Semprevivo and Ronald Semprevivo, in their own rights (collectively,
    plaintiffs), filed a medical negligence action against defendant medical
    providers, Hassan Lahham and Liviu Holca.           Plaintiffs alleged defendants
    prescribed opioids while decedent was their patient and thereby "directly
    caused" her death.
    When no further court action was "timely taken" under Rule 1:13-7(b),
    the trial court issued a written dismissal warning notice. Dated January 25,
    2019, the notice advised plaintiffs their complaint would be dismissed within
    sixty days, on March 26, 2019, for lack of prosecution under Rule 1:13-7, if
    plaintiffs failed to comply with the rule. Notably, subsection (b) of Rule 1:13-
    7 recognizes four "events [that] constitute required proceedings that must be
    Biunno, Weissbard, and Zegas, Current N.J. Rules of Evidence, cmt. 13 on
    N.J.R.E. 201 (2021) (recognizing "[a] party requesting a [court] to judicially
    notice matter allegedly within N.J.R.E. 201 must provide the [court] with
    sufficient information for the [court] to be able to determine that the matter
    actually does fall within the categories set forth in the Rule and that the matter
    is in fact noticeable"). In any event, the record does not reflect that Holca
    requested the trial court to take judicial notice of the federal action or the facts
    alleged in that matter. Information that was not presented to the trial court for
    consideration is inappropriate for consideration on appeal. Zaman v. Felton,
    
    219 N.J. 199
    , 226-27 (2014).
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    4
    timely taken to avoid the issuance by the court of a written notice of dismissal
    as set forth in subsection (a)." Relevant here, those events include "(1) proof
    of service or acknowledgment of service filed with the court; or (2) filing of
    answer . . . ."
    On March 29, 2019, plaintiffs' counsel apparently filed proof of service
    as to both defendants, but the court issued a deficiency notice, stating: "This is
    not good service." 3 The following day, the court on its own initiative issued a
    notice indicating plaintiffs' complaint was dismissed without prejudice for lack
    of prosecution under Rule 1:13-7.
    On July 24, 2019, plaintiffs filed proof of service as to Holca, indicating
    the summons and complaint were personally served at a specific address in
    Princeton by delivering those documents to "Ms. Holca," identified as
    defendant Holca's sister.
    On the same date, plaintiffs filed proof of service on Lahham, stating
    certified and regular mail was sent to Lahham at a specific post office box in
    3
    In their appendix on appeal, plaintiffs only included the non-conforming
    proof of service for Holca. In addition, both parties apparently quoted docket
    entries from the civil case jacket. Although the parties have not included a
    screen shot or other reproduction of those entries, we have considered their
    content, to the extent it is not contradicted by documents contained in the
    record. We take this opportunity to remind the bar that our review is confined
    to the parties' submissions; access to the civil case jacket is not readily
    available to this court.
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    5
    New York City on February 5, 2019. Certified mail was returned unclaimed
    on March 13, 2019; regular mail was not returned.           Plaintiffs also filed a
    motion to reinstate the complaint under Rule 1:13-7(a).
    According to plaintiffs, on July 25, 2019, the court apparently "issued an
    entry upon the docket" that stated: "When serving a defendant outside of New
    Jersey (by personal service or by certified/regular mail), an [a]ffidavit of
    [d]iligent [i]nquiry is required. See R[.] 4:4-4(b)(1)."4
    In the statement of facts and procedural history set forth in his
    responding brief on appeal, Holca cites to the "Civil Case Jacket, Trans. ID
    LCV20191290904, 7/25/2019," stating the trial court issued the deficiency
    notice "because Dr. Holca was out of state." Holca has not, however, provided
    a copy of that docket entry.
    On July 29, 2019, plaintiffs filed a certification of due diligence as to
    Lahham, who was served via mail at the New York City post office address.
    In his responding brief on appeal, Holca states plaintiffs filed an affidavit of
    4
    Rule 4:4-4(b)(1)(C) prescribes the process for substituted service on an out-
    of-state defendant. Pursuant to subsection (c) of the rule, "such service shall
    be effective for obtaining in personam jurisdiction only if the defendant
    answers the complaint or otherwise appears in response thereto, and provided
    further that default shall not be entered against a defendant who fails to answer
    or appear in response thereto." Lahham has not answered plaintiffs' complaint
    or otherwise entered an appearance in the trial court. He is not a party to this
    appeal.
    A-2505-19
    6
    diligent inquiry for Lahham, noting plaintiffs "did not correct the service
    issues with respect to Dr. Holca." However, there is no evidence in the record
    that Holca challenged personal service of "his sister" at the Princeton address
    before the trial court.
    On August 6, 2019, plaintiffs' present counsel filed a notice of
    appearance, but plaintiffs' initial counsel remained involved in the matter. The
    following day, Holca's attorney filed a notice of appearance and thereafter
    opposed plaintiffs' reinstatement motion.
    Following argument on August 19, 2019, the trial court rendered a
    decision from the bench, denying plaintiffs' motion to reinstate. The court
    briefly summarized the requirements of Rule 1:13-7.           Unpersuaded by
    plaintiffs' argument that a "clerical error" caused "an improper proof of
    service" to be "uploaded to the docket on March 29, 2019," the court found
    plaintiffs neither demonstrated good cause nor exceptional circumstances. The
    court entered an accompanying order denying plaintiffs' motion without
    prejudice.
    On October 31, 2019, Holca moved to dismiss plaintiffs' complaint with
    prejudice.   According to counsel's certification in support of the motion,
    because "more than sixty days ha[d] elapsed, [Holca] is moving to dismiss this
    matter with prejudice." During oral argument before the trial court, Holca's
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    7
    counsel acknowledged "looking at the rules, there was really nothing [he] saw,
    which would indicate how to go [sic] for a dismissal with prejudice." Counsel
    said he therefore "waited the sixty days" as required for with-prejudice
    dismissals for "discovery" failures. See R. 4:23-2(b). Holca's lawyer further
    argued, because the statute of limitations had expired, the dismissal without
    prejudice was "equivalent . . . to a dismissal with prejudice." Nonetheless,
    counsel filed the present motion "in an abundance of caution."          Finally,
    counsel argued plaintiffs failed to file their second reinstatement motion until
    they were served with Holca's motion to dismiss their complaint with
    prejudice.
    Plaintiffs opposed the motion and again moved to reinstate their
    complaint. During oral argument, plaintiffs' counsel cited staffing issues to
    explain the issues in service. In support of their motion, plaintiffs filed the
    certification of their initial attorney who elaborated:
    [1]. In or about March 2019 my office suffered a
    significant staff loss. Four paralegals employed with
    the [firm] left their positions.
    [2]. These individuals were responsible for the
    calendaring and service of this matter.
    [3]. As a result of not having the staff to handle my
    current case load the [c]ourt[']s deficiency notice
    slipped through the cracks.
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    During colloquy with counsel, the trial court indicated it had "re-listened
    to oral argument" from plaintiffs' initial reinstatement motion and the present
    hearing was "the first time" that plaintiffs raised "any staffing issue in
    counsel's office." 5 Citing our decision in Baskett, the trial court recognized
    that "absent a finding of fault by the plaintiff and prejudice to the defendant, a
    motion to restore under the rule should be viewed with great liberality." 
    422 N.J. Super. at 381
     (quoting Ghandi, 
    390 N.J. Super. at 197
    ). The court then
    carried the motion to afford Holca's counsel the opportunity to address whether
    his client would be prejudiced by reinstatement and any other issues raised
    during the hearing.
    During argument on January 10, 2020, the trial court considered the
    supplemental arguments of counsel. The court summarized Holca's prejudice
    argument as "lapse of time, memory with regard to any events that may have
    allegedly transpired." After citing the relevant portions of Rule 1:13-7, the
    court again determined plaintiffs failed to "present any exceptional
    circumstances or even good cause as to why the lack of prosecution should be
    vacated." The court made no finding as to prejudice to defendant, concluding
    plaintiffs "fail[ed] to meet the exceptional circumstances standard required
    5
    According to the transcript of the August 19, 2019 hearing, plaintiffs'
    counsel made a single, general reference to "some staff issues."
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    9
    under the court rule." The court dismissed plaintiffs' complaint with prejudice
    on Holca's motion, but cited no court rule to support his decision. The same
    day, the court entered a memorializing order. This appeal followed.
    On appeal, plaintiffs reprise their argument that Rule 1:13-7 provides
    "no procedural basis" for dismissals with prejudice. Plaintiffs contend the trial
    court erred by applying the heightened                Rule 1:13-7(a) exceptional
    circumstances      standard   for   multi-defendant    cases   in   deciding     their
    reinstatement motion. Plaintiffs argue that under the circumstances presented,
    the court should have decided their motion under the rule's good cause
    standard and that good cause existed for reinstatement of the complaint. We
    agree.
    II.
    We review the denial of a motion to reinstate a complaint dismissed for
    lack of prosecution for abuse of discretion. Baskett, 
    422 N.J. Super. at 382
    . A
    decision constitutes an abuse of discretion when it was "made without a
    rational explanation, inexplicably departed from established policies, or rested
    on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 
    171 N.J. 561
    ,
    571 (2002) (internal quotation marks omitted). We review legal issues de
    novo. Alfano v. BDO Seidman, LLP, 
    393 N.J. Super. 560
    , 573 (App. Div.
    2007). Accordingly, "[a] trial court's interpretation of the law and the legal
    A-2505-19
    10
    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).
    We begin our analysis by reviewing the text of Rule 1:13-7(a), which
    begins with the bases for an administrative dismissal of a complaint for lack of
    prosecution and provides, in pertinent part:
    [W]henever an action has been pending for four
    months . . . , without a required proceeding having
    been taken therein . . . , the court shall issue written
    notice to the plaintiff advising that the action as to any
    or all defendants will be dismissed without prejudice
    60 days following the date of the notice . . . unless,
    within said period, action specified in subsection (c) is
    taken. If no such action is taken, the court shall enter
    an order of dismissal without prejudice as to any
    named defendant and shall furnish the plaintiff with a
    copy thereof.
    [(Emphasis added).]
    Subsection (a) then provides the standards and procedures for
    reinstatement, permitting a plaintiff whose complaint has been dismissed to
    file a motion to reinstate the complaint. A court ruling on such a motion must
    determine whether the plaintiff has established good cause on one hand, or
    exceptional circumstances on the other, depending on the timing of the motion
    and the number of parties in the case:
    After dismissal, . . . [i]f the defendant has been
    properly served but declines to execute a consent
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    order, plaintiff shall move on good cause shown for
    vacation of the dismissal. In multi-defendant actions
    in which at least one defendant has been properly
    served, the consent order shall be submitted within 60
    days of the order of dismissal, and if not so submitted,
    a motion for reinstatement shall be required. The
    motion shall be granted on good cause shown if filed
    within 90 days of the order of dismissal, and thereafter
    shall be granted only on a showing of exceptional
    circumstances.
    [Ibid.]
    We turn to the purpose underlying the exceptional circumstances
    standard applied by the judge in denying plaintiffs' reinstatement motion. In
    doing so, we recognize there is no dispute that plaintiffs filed their motion
    more than ninety days after entry of the March 30, 2019 dismissal order.
    The exceptional circumstances standard "was intended to avoid delay
    where a case has proceeded against one or more defendants, and the plaintiff
    then seeks to reinstate the complaint against a previously-dismissed additional
    defendant."    Giannakopoulos v. Mid State Mall, 
    438 N.J. Super. 595
    , 609
    (App. Div. 2014); see also Pressler & Verniero, Current N.J. Court Rules, cmt.
    1.2 on R. 1:13-7(a) (2021). The exceptional circumstances standard therefore
    applies in a multi-defendant case that has proceeded against a properly served
    defendant prior to the filing of a motion to reinstate a complaint that was
    administratively dismissed against another defendant.
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    The rationale underlying the requirement that a plaintiff demonstrate
    exceptional circumstances in multi-defendant cases stems from a management
    problem that arises in such cases. Pressler & Verniero, cmt. 1.2 on R. 1:13-
    7(a). In multi-defendant cases where the complaint has been dismissed as to
    only one defendant,
    the case likely will have proceeded and discovery
    undertaken at least with respect to the action(s)
    against the remaining defendant or defendants. Thus
    vacation of the dismissal has the capacity of
    substantially delaying all further proceedings. To
    permit appropriate case management, the rule requires
    the consent order to be submitted within 60 days after
    the dismissal or, in the alternative, on motion for good
    cause shown within 90 days of the order of dismissal
    or on a showing of exceptional circumstances
    thereafter.
    [Ibid.]
    When interpreting Rule 1:13-7, a trial court should consider the
    following governing principles:
    The rules in Part I through Part VIII, inclusive, 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 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).]
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    Moreover, the general concept of relaxing a rule when adherence to it
    would result in an injustice takes on added significance when a rule involves
    case management and a party is facing the ultimate sanction of dismissal with
    prejudice. As we have observed:
    We appreciate the desirability of the prompt
    disposal of cases. Courts should not forget, however,
    that they merely provide a disinterested forum for the
    just resolution of disputes. Ordinarily, the swift
    movement of cases serves the parties' interests, but the
    shepherding function we serve is abused by
    unnecessarily closing the courtroom doors to a litigant
    whose only sin is to retain a lawyer who delays in
    filing an answer during settlement negotiations.
    Eagerness to move cases must defer to our paramount
    duty to administer justice in the individual case.
    [Audubon Volunteer Fire Co. No. 1 v. Church Constr.
    Co., 
    206 N.J. Super. 405
    , 406 (App. Div. 1986); see
    also Ghandi, 
    390 N.J. Super. at 198
    .]
    As we reiterated in Ghandi: "Because . . . 'any rule may be relaxed or
    dispensed with by the court in which the action is pending if adherence to it
    would result in an injustice,' R. 1:1-2, 'courts should be reluctant to penalize a
    blameless client for the mistakes of the attorney.'" 
    390 N.J. Super. at 198
    (quoting Familia v. Univ. Hosp. of Univ. of Med. & Dentistry of N.J., 
    350 N.J. Super. 563
    , 568 (App. Div. 2002)).            We further noted the "general
    disinclination to invoke the ultimate sanction of dismissal where the statute of
    limitations has run." 
    Ibid.
     (quoting Mason, 
    233 N.J. Super. at 268-69
    ).
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    14
    With those principles in mind, we turn to the facts in the present matter.
    The trial court applied the "exceptional circumstances" standard in Rule 1:13-7
    at a juncture in the case when application of that standard did not serve the
    purpose of the rule. The reinstatement motion was filed after plaintiffs filed
    proof of service as to both defendants, neither of whom had filed an answer
    and, clearly, discovery had not ensued. As the trial court recognized at the
    first hearing on August 19, 2019:       "There [wa]s no discovery end date,
    arbitration or trial date." We therefore conclude the judge's application of the
    heightened exceptional circumstances standard here is not supported by the
    plain language of Rule 1:13-7(a), and is inconsistent with that standard's
    purpose. Indeed, the management problem the rule was intended to address –
    delay of all further proceedings against defendants that have participated in the
    case and taken discovery – did not exist.
    Our conclusion that the motion judge erred by applying the exceptional
    circumstances standard under the circumstances presented does not end the
    inquiry.   We consider whether the record supports a determination that
    plaintiffs demonstrated good cause for the reinstatement of the complaint.
    We have recognized the term, "good cause," evades a precise definition.
    Ghandi, 
    390 N.J. Super. at 196
    .      Instead, courts applying the good cause
    standard must exercise "sound discretion in light of the facts and
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    15
    circumstances of the particular case considered in the context of the purposes
    of the Court Rule being applied." 
    Ibid.
     (quoting Delaware Valley Wholesale
    Florist, Inc. v. Addalia, 
    349 N.J. Super. 228
    , 232 (App. Div. 2002)).             In
    Ghandi, we addressed the good cause standard under Rule 1:13-7(a), where the
    plaintiff failed to request the entry of default. 
    390 N.J. Super. at 195
    . We
    stated that because administrative dismissals are "without prejudice . . . the
    right to 'reinstatement is ordinarily routinely and freely granted when [the]
    plaintiff has cured the problem that led to the dismissal even if the application
    is made many months later.'" 
    Id. at 196
     (quoting Rivera v. Atl. Coast Rehab.
    and Health Ctr., 
    321 N.J. Super. 340
    , 349 (App. Div. 1999)).
    In Baskett, we applied the Ghandi good cause standard to a trial court's
    denial of the plaintiffs' motion to reinstate a complaint, where we were
    disturbed that the dismissal resulted from plaintiffs' initial lawyer's inattention.
    Baskett, 
    422 N.J. Super. at 384-85
    . We also noted that the defendants failed to
    present any evidence demonstrating they suffered prejudice from the plaintiffs'
    delay in seeking reinstatement. 
    Id. at 384
    . We reversed the trial court's order,
    finding that under the "indulgence mandated by Ghandi," and because the
    plaintiffs were "essentially blameless, the courthouse doors should not be
    locked and sealed to prevent their claims from being resolved in the judicial
    forum." 
    Id. at 385
    .
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    Here, application of the principles we espoused in Ghandi and Baskett
    require reversal of the court's order denying plaintiffs' reinstatement motion.
    The record is devoid of any blame directly attributable to plaintiffs. Indeed,
    the certification of plaintiffs' initial counsel expressly specified that the bla me
    lay with the firm's staffing issues.
    Just as importantly, Holca did not present the trial court – or this court –
    with any evidence demonstrating he would be prejudiced if plaintiffs' motion
    was granted, other than a general and speculative "lapse of . . . memory." See
    Baskett, 
    422 N.J. Super. at 385
     (finding good cause for reinstatement of a
    complaint in part because the defendant did not present a "scintilla of
    evidence" supporting his claim of prejudice).
    Having considered the record, we are convinced the good cause standard
    applied, and was satisfied.     We therefore conclude the denial of plaintiffs'
    motions constituted a mistaken exercise of discretion.
    We turn next to plaintiffs' argument that Rule 1:13-7 did not provide a
    procedural mechanism for dismissal of their complaint with prejudice. As
    quoted above, the text of the rule is clear and unambiguous. "Dismissals under
    the rule are 'without prejudice.'" Ghandi, 
    390 N.J. Super. at
    196 (citing R.
    1:13-7(a)).   Indeed, "[p]aragraph (a) of the rule expressly provides that a
    dismissal pursuant thereto is without prejudice." Pressler & Verniero, Current
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    17
    N.J. Court Rules, cmt. 1.1 on R. 1:13-7 (2021).           As Holca candidly
    acknowledged before the motion judge, no other rule authorizes a with-
    prejudice dismissal where, as here, plaintiffs' pleading was administratively
    dismissed by the court. Indeed, no case law supports the judge's decision.
    We recognize plaintiffs filed their second reinstatement motion only
    after Holca filed his motion to dismiss with prejudice and, as such, their
    complaint would have remained dismissed had he not so moved. But the judge
    denied plaintiffs' initial reinstatement motion "without prejudice" and
    ultimately erroneously decided the motion under the exceptional circumstances
    standard. Accordingly, we are not persuaded by Holca's argument that the
    timing of the parties' countervailing motions precluded reinstatement of
    plaintiffs' complaint.
    Finally, we address Holca's decision to file a motion seeking the
    dismissal of plaintiffs' case with prejudice as a form of affirmative relief
    ostensibly available under Rule 1:13-7. A plain reading of the text of Rule
    1:13-7 reveals no authority for this form of motion practice. Holca's reliance
    on the procedural mechanism provided under Rule 4:23-5 is facially irrelevant
    to the issues involved here. We thus make clear that Rule 1:13-7 does not
    authorize this type of motion practice.
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    The denial of plaintiffs' reinstatement motion constituted a mistaken
    exercise of discretion and the judge erred as a matter of law by dismissing the
    complaint with prejudice. Accordingly, we reverse and remand the matter so
    Holca may file an answer or otherwise plead to the complaint, the parties may
    commence discovery, and the action may be resolved on the merits.
    Reversed and remanded. We do not retain jurisdiction.
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