BRIDGET ANTONUCCI v. HAZLET TOWNSHIP BOARD OF EDUCATION, et al.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1546-04T3

BRIDGET ANTONUCCI,

Plaintiff-Appellant,

v.

HAZLET TOWNSHIP BOARD OF
EDUCATION, NICHOLAS SARDONE
(individually and in the
representative capacity),
RICHARD CONTE (individually and
in the representative capacity), and
TIMOTHY NOGUEIRA (individually and
in the representative capacity),

Defendants-Respondents,

and

LINDA BOEHLER,

Defendant.

___________________________________________

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September 27, 2005

Submitted September 14, 2005 - Decided

Before Judges Conley, Weissbard and
Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,
L-409-02.

Jeffrey P. Ferrier, attorney for appellant.

Purcell, Ries, Shannon, Mulcahy & O'Neill, attorneys for respondents Hazlet Township Board of Education, Richard Conte and Timothy Nogueira (David M. Hawkins, of counsel; Michael F. O'Neill and Meredith H. Marcus, on the brief).

Nirenberg & Varano, attorneys for respondent Nicholas Sardone (Howard M. Nirenberg and Sandra N. Varano, on the brief).

PER CURIAM
 
Plaintiff, a special education teacher, appeals the grant of summary judgment dismissing her complaint against defendants. Her six-count complaint, filed in January 2002, alleged that the non-renewal of her employment contract as a special education teacher with the Hazlet Township Board of Education (the Board) violated the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-39.1, et seq.; the New Jersey Family Leave Act, N.J.S.A. 34:11B-9, et seq.; and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. She also asserted three common-law claims: intentional and/or negligent infliction of emotional distress; interference with prospective economic advantage; and wrongful discharge in violation of public policy. Plaintiff named as defendants: the Board; Timothy Nogueira, Superintendent of Schools; Richard Conte, Director of Special Services; Linda Boehler, a member of the Board; and Nicholas Sardone, school principal See footnote 1 .
On appeal she raises the following:
POINT I
 
THE COURT IGNORED DISPUTED ISSUES OF MATERIAL FACT WHEN IT DISMISSED PLAINTIFF'S WORKERS' COMPENSATION RETALIATION CAUSE OF ACTION.

POINT II
 
THE COURT ERRED IN DISMISSING PLAINTIFF'S HANDICAP DISCRIMINATION CLAIM UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION.

POINT III
 
THE DEFENDANTS DID NOT SEEK SUMMARY JUDGMENT AS TO COUNTS 2, 4, AND 6 OF THE COMPLAINT AND THE COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT AS TO THOSE THREE COUNTS.

POINT IV
 
THE COURT ERRED IN DISMISSING PLAINTIFF'S REMAINING NJLAD CAUSES OF ACTION.

POINT V
 
THE PLAINTIFF FILED A MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS AND THE COURT INCORRECTLY INTERPRETED COURT RULES WHEN IT DENIED PLAINTIFF'S MOTION TO COMPEL.

We have carefully considered Points I through IV in light of the record and applicable law. We conclude the issues presented by the plaintiff are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A) and (E). The trial court properly concluded that the evidence presented by plaintiff did not create a genuine issue of material fact under Rule 4:46-2. Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 542 (1995). We affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on October 22, 2004.
In Point V, plaintiff appeals the trial court order denying her motion to compel discovery, which was filed on April 28, 2004. The trial judge ruled plaintiff's opportunity "for leave to obtain, compel or enforce [c]ourt sanctioned discovery" closed on November 8, 2003, prior to plaintiff's filing of the motion.
Plaintiff contends R. 4:18-1 authorizes a party to seek an order compelling the production of discovery if timely responses have not been received. The rule does not, however, specify the time frame within which the order must be sought. Plaintiff further asserts that, although R. 4:18-1 is silent as to the timing of a motion to compel, R. 4:24-2 specifically sets forth those motions that must be filed prior to the expiration of discovery. A motion to compel production of documents is not included among the motions subject to R. 4:24-2. Thus, plaintiff argues, she was not required to file her motion prior to the expiration of discovery; therefore, the court erred when it denied her motion on that basis.
The role of the Appellate Division in reviewing the trial court's decision to grant or deny discovery is limited to a determination of whether the trial court abused its discretion or whether its determination is based upon a mistaken application of the law. Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div. 2005).
In the instant matter, the first Notice to Produce was served upon the Board on July 5, 2002. The Board responded to that request five months later. It advised plaintiff some of the discovery sought (e.g., the personnel records of defendants Sardone and Conte) would not be produced absent court order. The second request to produce was served October 24, 2003, less than one month before discovery was due to expire. Despite the Board's express refusal to turn over certain documents and its additional non-compliance with the second request, plaintiff took no action until the spring of 2004.
Plaintiff is correct that Rule 4:24-2, prior to its amendment, did not require that a motion to compel production of documents be filed prior to the expiration of discovery See footnote 2 . This fact, however, is not dispositive of whether the trial judge erred in denying plaintiff's motion. The timely completion of discovery within the time prescribed under the rules is an important and significant part of our discovery rules. Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 390 (2005). When discovery is not completed in a timely manner, one of the first inquiries the court must make is to determine why the discovery was not completed within the time allotted and whether counsel has exercised due diligence in the pursuit of discovery. Rivers, supra, 378 N.J. Super. at 79.
Here, the motion to compel was filed approximately six months after the close of discovery and nearly eighteen months after the Board initially refused to turn over certain documents. The certification submitted in support of the motion gave no reasons for the delay in taking action to compel compliance with the discovery demands. Additionally, a motion to extend discovery beyond November 8, 2003, was never sought, nor did plaintiff seek any other associated special relief prior to the expiration of discovery. See R. 4:23-5(a)(1). In light of this record, we find no abuse of discretion or misapplication of the law in the trial judge's refusal to grant plaintiff's motion.
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Affirm.
 

Footnote: 1 In 2003, Boehler filed a motion for summary judgment seeking dismissal of the claims brought against her individually, which was granted and is not being appealed.
Footnote: 2 Rule 4:24-2 was amended effective June 7, 2005. Rule 4:18-1 is now subject to this rule.

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