S. Ct. Civ. No. 2013-0034

In an attempted appeal of a default judgment entered by the Magistrate Division in a tradesman's suit for payment relating to a construction project, the Appellate Division's orders dismissing the appeal for failure to prosecute are vacated and reversed. When a Superior Court rule governs the same subject matter, a federal rule cannot apply to proceedings pursuant to Superior Court Rule 7 because that would render the Superior Court rule wholly superfluous. In this case the motion arose under Superior Court Rule 322.5(b)(2), which modifies Rule 322.1(h)(2)(B), and authorizes the Appellate Division to consider a motion to set aside a dismissal order and to reopen a matter that is dismissed upon a showing of good cause or excusable neglect. Here, however, rather than analyzing the factors on the record, the court essentially applied a per se rule that failure to timely to file a transcript request form requires dismissal, and rejected the appellant's claim that he timely filed this form on the grounds that it lacked a Superior Court date stamp. The overwhelming, uncontradicted evidence in the record indicates that the appellant met his burden of demonstrating good cause or excusable neglect for setting aside orders dismissing this appeal. Therefore, the Superior Court's orders confirming dismissal of the appeal for failure to prosecute are reversed and vacated, and the case is remanded to the Appellate Division so that it may consider the appeal of this default judgment on the merits.