FIKRI MUSA v. DON SEECHARRAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4350-04T24350-04T2

FIKRI MUSA,

Plaintiff-Appellant,

v.

DON SEECHARRAN,

Defendant-Respondent,

and

JASON GARRETT and SALIJAM

MUSA,

Defendants,

and

SELECTIVE INSURANCE COMPANY

OF AMERICA,

Defendant/Intervenor.

_______________________________________

 

Argued March 13, 2006 - Decided April 3, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. PAS-L-3283-03.

Keith O. Evans argued the cause for appellant (Friedman, Sherwin & Scarola, attorneys; Mr. Evans, on the brief).

Floyd F. Lombardi argued the cause for respondent (De Sevo, Lombardi, attorneys; Mr. Lombardi, on the brief).

PER CURIAM

Plaintiff Fikri Musa appeals from orders entered on January 7, 2005: 1) denying plaintiff's motion to vacate an order "filed" on March 19, 2004 dismissing his complaint against defendant Don Seecharran (Seecharran) without prejudice; and 2) granting Seecharran's motion to dismiss the complaint with prejudice. Plaintiff also appeals from an order entered on February 18, 2005 denying his motion for reconsideration. We reverse.

We briefly summarize the relevant facts. On July 29, 2003, plaintiff filed an action against Seecharran and two other defendants asserting claims arising out of a motor vehicle accident that occurred on August 18, 2001 in Clifton, New Jersey. Selective Insurance Co. of America (Selective) intervened in the action as a party defendant. Selective and Seecharran subsequently served Form A Interrogatories upon plaintiff.

Selective and Seecharran thereafter filed motions to dismiss plaintiff's complaint for failure to answer the interrogatories within the time required by R. 4:17-4(b). The court granted the motions. Two orders were entered. Both orders are dated April 2, 2004. However, the order granting Selective's motion is stamped "filed" on April 2, 2004 and the order granting Seecharran's motion is stamped "filed" on March 19, 2004.

Plaintiff moved on or about June 11, 2004 to vacate the order entered on April 2, 2004 dismissing his complaint. In support of the application, plaintiff's counsel submitted a certification in which he stated that plaintiff had provided answers to the interrogatories to defense counsel. Plaintiff's motion was granted by order entered on July 9, 2004. The order "filed" April 2, 2004 was vacated, subject to the payment by plaintiff of the $300 restoration fee required by R. 4:23-5(a)(1).

On October 18, 2004, Seecharran again moved to dismiss the complaint without prejudice because plaintiff had twice failed to appear for an independent medical examination. However, by letter dated October 21, 2004, the Manager of the Passaic County Civil Division advised that the complaint remained dismissed as to Seecharran pursuant to the order "filed" on March 19, 2004. The Civil Division Manager noted that the order of restoration only vacated the April 2, 2004 order, which was the order dismissing the complaint as to Selective. The Civil Division Manager added, however, that plaintiff had not paid the restoration fee.

On October 27, 2004, Seecharran's counsel wrote to plaintiff's attorney and advised that the matter "remains dismissed" because the restoration fee had not been paid. However, the complaint against Seecharran did not remain dismissed because of plaintiff's failure to pay the restoration fee. The complaint remained dismissed as to Seecharran because plaintiff had not moved to vacate the order stamped "filed" on March 19, 2004. On October 29, 2004, plaintiff's counsel tendered payment of the $300 restoration fee, thus effecting the restoration of the complaint as to Selective.

In December 2004 Seecharran moved to dismiss plaintiff's complaint with prejudice pursuant to R. 4:23-5(a)(2). In a supporting certification, Seecharran's counsel stated that an order had been entered on March 19, 2004 dismissing the complaint; a letter had been written to plaintiff's attorney "notifying plaintiff to restore the complaint" on October 27, 2004; and plaintiff failed to restore the complaint as to Seecharran.

Plaintiff filed a cross-motion seeking to vacate the order of dismissal "dated" April 2, 2004 and restoring the matter to the active calendar. In his supporting certification, plaintiff's attorney stated that he mistakenly did not realize that two orders of dismissal had been entered. Counsel asserted, however, that the answers to interrogatories had been provided to all the defendants in the case. Counsel added that discovery in the case had largely been completed. Counsel stated that he believed:

all counsel were under the impression that the case was completely reactivated. This is true as to [counsel for Seecharran], the moving party on the within Motion, as [counsel] filed a Motion with the Court in November [2004] seeking to dismiss plaintiff's Complaint for failure to attend their defense medical examination.

The motion judge granted Seecharran's motion to dismiss the complaint with prejudice and denied plaintiff's cross-motion to restore. The judge set forth his reasons on the record January 7, 2005. The judge found that plaintiff had not established exceptional circumstances to avoid dismissal with prejudice. The judge stated that confusion on the part of plaintiff's attorney does not amount to exceptional circumstances. He added that when the complaint had been reinstated, it had been reinstated as to Selective only. The judge noted that Seecharran's attorney had written to plaintiff's counsel in October 2004 reminding counsel that the matter remained dismissed without prejudice. Thereafter, there had been no response from plaintiff until Seecharran moved to dismiss with prejudice.

On January 7, 2005, the judge entered the orders dismissing the complaint with prejudice and denying plaintiff's motion to reinstate his complaint. Plaintiff filed a motion for reconsideration which was denied by order entered on February 18, 2005. This appeal followed.

Plaintiff argues that the judge committed reversible error by granting Seecharran's motion and denying plaintiff's cross-motion to vacate the order of dismissal. Plaintiff contends that dismissal with prejudice was not warranted in the circumstances because plaintiff previously provided responses to Seecharran's discovery request. We agree.

Pursuant to R. 4:23-5(a)(1), a complaint may be dismissed without prejudice where, as happened in this case, a party fails to respond to interrogatories within the time prescribed by R. 4:17-4(b). Dismissals with prejudice are governed by R. 4:23-5(a)(2), which states in pertinent part that:

If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 90 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice.

[Ibid. (emphasis added).]

The rule additionally provides that the judge shall grant the motion to dismiss or suppress with prejudice:

unless a motion to vacate the previously entered order of dismissal without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

[Ibid.]

We are convinced that the judge erred in dismissing the complaint with prejudice because Seecharran was not entitled to relief under R. 4:23-5(a)(2). It is undisputed that plaintiff provided answers to the interrogatories to all defendants in June 2004. Seecharran does not contend that the answers were in any way unresponsive. Although plaintiff did not move to vacate the order dismissing the complaint as to Seecharran, Seecharran was not a "party entitled to discovery" in December 2004 when he filed his motion to dismiss the complaint with prejudice. The discovery had been provided. Therefore, under the plain language of R. 4:23-5(a)(2), Seecharran could not seek relief under that provision of the rule.

Moreover, entry of an order dismissing the complaint with prejudice was not authorized by R. 4:23-5(a)(2) because when Seecharran's motion came before the judge on January 7, 2005, plaintiff had already filed his cross-motion to vacate the March 19, 2004 order of dismissal. Seecharran's motion should not have been granted because such relief is warranted only if plaintiff has not filed a motion to vacate the order dismissing the complaint without prejudice and "either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated." Ibid. Here, plaintiff had filed his motion to vacate and previously provided defendant with the answers to the interrogatories. The rule does not permit dismissal with prejudice in these circumstances.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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A-4350-04T2

April 3, 2006