CLARK MOTLEY and JOANNE MOTLEY, husband et al. v. STATE OF NEW JERSEY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6626-04T56626-04T5

CLARK MOTLEY and

JOANNE MOTLEY, husband and wife,

Plaintiffs-Respondents,

v.

STATE OF NEW JERSEY and

STATE OF NEW JERSEY-DIVISION

OF STATE POLICE,

Defendants-Appellants.

______________________________________________________________

 

Submitted May 2, 2006 - Decided May 12, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, L-000342-04.

Zulima V. Farber, Attorney General, attorney

for appellants (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Randall B. Weaver,

Deputy Attorney General, on the brief).

Michael J. Reimer, attorney for respondents

(Mr. Reimer, on the brief).

PER CURIAM

The Law Division entered orders suppressing defendants' answer with prejudice and denying defendants' motion for reconsideration. The orders were entered because of defendants' failure to provide discovery to plaintiffs, Clark Motley and his wife Joanne Motley. We granted defendants' motion for leave to appeal and now reverse.

I Plaintiff Clark Motley is a former Trooper in the Division of State Police, and Joanne Motley is his wife. Their amended complaint, filed on February 6, 2004, alleged that defendants discriminated against Clark in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49; denied his State Constitutional rights to due process and equal protection of the laws; retaliated against him in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, by filing spurious charges and specifications respecting his job performance; committed acts of sexual harassment against him; intentionally and outrageously inflicted emotional distress on him; harassed him; and caused Joanne to be "subjected to harassment, humiliation, prejudice, bias and outrage."

On July 20, 2004, defendants filed their answer to the amended complaint denying the allegations and asserting affirmative defenses. On August 14, 2004, plaintiffs served defendants with interrogatories and a demand for production of documents, and on September 30, 2004, defendants served plaintiffs with their interrogatories, document demands, and a response to plaintiffs' document demand. The response objected to many of the document demands but also asserted that they were "conducting a diligent search for relevant documents" which would be provided by November 1, 2004. On October 13, 2004, defendants turned over Clark's personnel file. On November 10, 2004, defendants substituted another deputy attorney general as counsel because the deputy who had been handling the case left on maternity leave. On November 16, 2004, plaintiffs provided answers to defendants' discovery demands.

On December 18, 2004, plaintiffs filed a motion pursuant to Rule 4:23-5 to suppress the answer for failure to make discovery and to extend the time for discovery, which had not yet expired.

The motion was returnable on January 7, 2005. A couple of days before the return date, defendants sent plaintiffs their answers to interrogatories and asked plaintiffs to enter into a consent protective agreement regarding the 1500 documents they sought. Defendants asked the judge not to suppress their answer, asserting that they would provide the documents as soon as plaintiffs agreed to the proposed protective agreement. Plaintiffs complained to the judge that this was the first time that defendants had objected to turning the documents over based on the need to keep them confidential. They also asserted that the interrogatory answers were inadequate. On January 20, 2005, the judge entered an order suppressing defendants' answer without prejudice for failure to make discovery.

On April 26, 2005, defendants provided plaintiffs with documents; however, the documents were heavily redacted, including the deletion of "personal identifying information of all individuals identified in them (other than plaintiff), the allegations and conclusions . . . ." That same day, defendants filed a motion to vacate the January 20 order. Plaintiffs replied with a cross-motion to suppress defendants' answer with prejudice, noting that the documents were useless in their redacted state and that defendants' motion was beyond the ninety-day period provided by Rule 4:23-5(1). On May 13, 2005, at the conclusion of the arguments on the motions, the judge entered an order suppressing the answer with prejudice. He described defendants as "actively resisting and dodging turning over relevant or useful information to the plaintiff." And he further reasoned as follows:

The plaintiff asserts that a consent protective order was belatedly sought. There's almost a suggestion by the State that the plaintiff somehow unreasonably refused to enter into the consent protective order. As I understand it, you can . . . withhold consent on bases, you know, any basis. Maybe his client doesn't want a consent order, I don't know. He doesn't have to do that. And that puts the State in a position that they can make a motion for a protective order. They can submit these things to the Court with some explanation as to why they feel this name or that name should be redacted, or all the names should be redacted. I'm not in a position to know what the State's assertions are. But to submit these documents with the universal redactions that they contain in all the pages, and I forget to be honest how many total pages you've got, but it's a couple of inches of paperwork.

. . . .

. . . The response of the State was woefully tardy. Already there had been a dismissal for failure to make discovery. This is failure to make discovery to the second or third power. This is an attempt to appear to have made discovery which is a subterfuge. It's inexcusable, it's disgraceful and this Court will not countenance it, it will not look the other way. The State of New Jersey deserves better in defense of the State. I have no idea what the defense would be. I'm sure there may well have been a defense, but I believe the State is playing games with the plaintiff. There was no meaningful compliance whatsoever.

Now, Rule 4:23-5(a)(1) provides dismissal without prejudice. [The] [d]elinquent party may move for notice for vacation of the dismissal or suppression order at any time before the entry of dismissal or suppression with prejudice. The motion shall be supported by an affidavit in reciting that the discovery asserted to have been withheld has been fully and responsibly provided.

As I understand it, you've indicated in your affidavit, [Deputy Attorney General], that discovery has been fully and responsibly provided and I find that that is fallacious. Discovery has not been provided. Further, the rule provides that in addition to the affidavit -- and shall be accompanied by payment of $100, which you don't have to pay because you're from the State and I don't think the failure to pay that $100 has anything to do with it -- if the motion is made within 30 days after the entry. So, as far as I'm concerned the moving party has not complied with the requirements of the rule, motion to reinstate is denied, motion to suppress the answer with prejudice is granted.

Thereafter, defendants moved for reconsideration. After receiving objections from plaintiffs, defendants provided some "un-redacted documents" and a "revised privilege log." The judge rejected the motion, reasoning as follows:

I never saw a more blatant case of failure to be responsive in my life. If the State is permitted to do what they did in this case, I would think that the rules with respect to discovery are out the window. There was no motion for a protective order. There was no motion for an extension of time and there was no explanation. These reports that were excised -- there was nothing. There was no information. Every shred of information had been deleted, even information known to be already in the possession of the plaintiffs. I think it was an outrage . . ., and I, as a judge, will not condone or countenance it. . . . I have reviewed these responses and I thought it was quite simply the single most egregious discovery violation that I have ever seen . . . . This, to me, was a misrepresentation of the State of New Jersey and it was totally unjust and unfair to the plaintiff in this case. There is no explanation for it. There is no excuse for it. It's shameless and again, I've reconsidered and I've thought about it, and I find absolutely no basis to change my ruling.

. . . Here the State argued the Court erroneously imposed the sanction of dismissal and should not have stricken the answer with prejudice. The State puts forth absolutely nothing, no evidence or argument, nothing.

II

When reviewing an order dismissing a complaint with prejudice for discovery misconduct, we must determine "whether the trial court abused its discretion" and should not interfere with the judgment "unless it appears that an injustice has been done." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995) (citations omitted).

Rule 4:23-5(a) governs the trial court's authority to grant a motion to dismiss or suppress a party's pleadings due to failure to provide discovery. It states in relevant part:

(1) Without Prejudice. If a demand for discovery pursuant to R. 4:17, R. 4:18-1, or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may . . . move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. . . . Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice. . . . The delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice. . . . If, however, the motion is not made within 90 days after entry of the order of dismissal or suppression, the court may also order the delinquent party to pay sanctions or counsel fees and costs, or both, as a condition of restoration.

(2) With Prejudice. 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. . . . The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression 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.

[R. 4:23-5(a).]

The Supreme Court has cautioned trial courts to impose the sanction of dismissal with prejudice "only sparingly." Abtrax, supra, 139 N.J. at 514 (citations omitted). It explained that "[t]he dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except in those cases where the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious." Ibid. (citations omitted). Further, "[s]ince dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault." Ibid. (citations omitted). Thus, "[a]lthough R. 4:23-5 does not contain a list of possible sanctions, it 'does not explicitly limit the power of the court to a choice between imposing the ultimate sanction of dismissal with prejudice or imposing no sanction at all.'" Georgis v. Scarpa, 226 N.J. Super. 244, 250 (App. Div. 1998) (quoting Zaccardi v. Becker, 88 N.J. 245, 253 n.3 (1982)). Rather, the court retains "the power to equitably adjust the controversy by less drastic sanctions when appropriate." Ibid. The court should asses the "varying levels of culpability of delinquent parties" and determine which of the "wide range of available sanctions" would be most effective. Id. at 251 (citations omitted). Accordingly, "[i]f a lesser sanction than dismissal suffices to erase the prejudice to the non-delinquent party, dismissal of the complaint is not appropriate and constitutes an abuse of discretion." Ibid.

The use of lesser sanctions helps achieve the strong public policy in favor of "having the factual and legal issues determined in an adversary proceeding," rather than disposing of a case based upon a party's failure to strictly adhere to the discovery rules. Tenby Chase Apartments v. N.J. Water Co., 169 N.J. Super. 55, 62 (App. Div. 1979) (citations omitted). Indeed, R. 4:23-5 "is designed to elicit answers rather than to punish the offender by the loss of his cause of action or defense." Zimmerman v. U.S. Auto. Assoc., 260 N.J. Super. 368, 374 (App. Div. 1992). Despite "the legitimate concerns of the motion judge for compliance with discovery rules, . . . [the court's] first duty is to do justice." Georgis, supra, 226 N.J. Super. at 250. "[T]here is an absolute need to remember that the primary mission of the judiciary is to see justice done in individual cases. Any other goal, no matter how lofty, is secondary." Ibid. (citation omitted).

Accordingly, despite the State's undeniably poor response, suppression of its answer with prejudice was a "drastic" sanction that should have been imposed only if "no lesser sanction [would] suffice to erase the prejudice suffered by [plaintiffs]." Abtrax, supra, 139 N.J. at 514. The judge had "a wide range of available sanctions," from which to choose to compel compliance with the rules of discovery. Georgis, supra, 226 N.J. Super. at 251. He could have issued an order requiring the turnover of the requested documents without modification. He could have ordered "sanctions or counsel fees and costs, or both." R. 4:23-5(a)(1). He could have ordered more specific answers. Adedoyin v. Arc of Morris County Chapter, Inc., 325 N.J. Super. 173, 182 (App. Div. 1999); Zimmerman, supra, 260 N.J. Super. at 377-78. Indeed, the judge could have utilized any number of sanctions to secure compliance with plaintiffs' discovery requests. He did not attempt to use any of them. Instead, he granted plaintiffs' motion to suppress the answer and defenses with prejudice and confirmed that determination on reconsideration despite defendants' assertion that it was "in the process of providing plaintiff[s] with a copy of the documents with only personal identifying information (such as social security numbers and telephone numbers, but not names and addresses) redacted."

The judge's error was heightened by the fact that the delinquent party against whom he entered the order was the State of New Jersey. Plaintiffs' complaint alleges matters of public interest that should be determined in an adversarial proceeding. Moreover, the taxpayers will bear the burden of paying any damages awarded to plaintiffs. In such a circumstance, the court has an even greater interest in seeing that the case is adjudicated on its merits, even where the public entity may have been less than diligent in defending the action. See Mancini v. EDS, 132 N.J. 330, 337-38 (1993); Tenby Chase Apartments, supra, 169 N.J. Super. at 60. Although the State's conduct here was inappropriate, the judge should have attempted to secure the proper compliance through the lesser sanctions noted before resorting to "the ultimate sanction of dismissal." Abtrax, supra, 139 N.J. at 514. Accordingly, the orders on appeal are reversed.

Reversed and remanded for further proceedings consistent with this opinion.

 

We note that plaintiffs' response brief fails to cite any legal authority in support of their arguments. That course is clearly inconsistent with Rule 2:6-4 and decidedly unhelpful to the court.

(continued)

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A-6626-04T5

May 12, 2006