ROSEMARIE ARNOLD v. ELIZABETH ARNOLD

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2674-05T1

ROSEMARIE ARNOLD,

Plaintiff-Respondent,

v.

ELIZABETH ARNOLD,

Defendant-Appellant.

_______________________________________

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April 19, 2007

Argued March 14, 2007 Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-6715-03.

Alan Y. Medvin argued the cause for appellant (Pashman Stein, and Medvin & Elberg, attorneys; Michael S. Stein and Sean Mack, on the brief).

Leonard P. Rosa argued the cause for respondent (Norton, Arpert, Sheehy & Higgins, attorneys; Mr. Rosa and Vincent Guglielmotti, on the brief).

 
PER CURIAM
Defendant Elizabeth Arnold appeals from a final judgment by default entered in favor of plaintiff Rosemarie Arnold on December 20, 2005, and certain interim orders which resulted in the dismissal with prejudice of her answer and counterclaim. For the reasons that follow, we reverse.
Plaintiff and defendant are sisters. Plaintiff owns a law firm which does business in Fort Lee, New Jersey, and she employed defendant as an associate from May 11, 1998 until July 21, 2003. In this case, plaintiff alleges that defendant wrongfully used plaintiff's client list and client files after leaving the firm; tortiously interfered with plaintiff's contractual relations with her clients; and wrongfully obtained referral fees by making false and misleading statements. Defendant denies these allegations and counters with her own claims, asserting that she was constructively discharged because of a disability in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49; and is owed referral fees and compensation for services that she performed for plaintiff's firm.
Early in the case, plaintiff served upon defendant 68 interrogatories and a demand for the production of 49 categories of documents. On August 8, 2005, the judge entered an order dismissing defendant's answer and counterclaim with prejudice for failure to comply with the court's orders requiring fully responsive answers to interrogatories. Defendant filed a motion for reconsideration, which was granted by order entered on September 20, 2005. The judge vacated his order of dismissal on the condition that defendant provide plaintiff with more specific answers to certain interrogatories.
On or about October 6, 2005, defendant's counsel provided answers to the interrogatories. However, plaintiff moved to reinstate the dismissal order, arguing that defendant's answers remained deficient. In a decision placed on the record on November 4, 2005, the judge found that defendant had not provided fully responsive answers to interrogatories 5, 6, 7, 14, 15, 17, 29, 30, 31, 38, 40, 59, and 61. The judge further found that defendant had not provided a sufficient response to document requests 1, 2, 5, 8, 9, 24, 30, 31, 37, 39, 40, 44, 46, and 48.
An order was entered on November 10, 2005, reinstating the August 8, 2005 dismissal order. Defendant filed a motion for reconsideration, which was denied by order entered on December 13, 2005. A proof hearing was held on December 13, 2005, and on December 20, 2005, a final judgment by default was entered for plaintiff in the amount of $125,186.25, plus costs. This appeal followed.
Defendant argues that: 1) the judgment should be vacated and the interim orders reversed because defendant appropriately responded to all discovery orders; 2) the interim orders should be reversed because plaintiff was not prejudiced by defendant's responses to the discovery requests and the motion judge failed to consider less drastic remedies; 3) the motion judge repeatedly made egregious errors; and 4) the case should be remanded to a new judge with instructions to review the responses and provide an appropriate opinion detailing any deficiencies.
Plaintiff responds by asserting that the judgment and the interim orders should be affirmed because there is sufficient credible evidence in the record to support the judge's finding that defendant's discovery violations were willful and deliberate; and 2) the judge properly exercised his discretion in dismissing defendant's pleadings with prejudice.
When a party fails to comply with an order to provide discovery, R. 4:23-2(b) authorizes the court to "make such orders in regard to the failure as are just," including:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;

(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party[.]

The court's authority under R. 4:23-2(b)(3) to dismiss with prejudice should be exercised "only sparingly." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)).
Indeed, dismissal with prejudice "is drastic and is generally not to be invoked except in those cases in which 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. (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)). Moreover, because "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. (quoting Zaccardi, supra, 88 N.J. at 253).
We are satisfied that the judge erred by imposing the "ultimate sanction" in this matter. Here, the judge entered an order of dismissal with prejudice on August 8, 2005, but later vacated that order on the condition that defendant provide plaintiff more complete answers to interrogatories 5, 6, 7, 14, 15, 17, 29, 30, 31, 38, 40, 43, 45, 59, 61, 63, 64, 65, 66, and 67. Defendant provided supplemental answers, as required.
Yet, as stated previously, in his decision on the record on November 4, 2005, the judge found that defendant had not supplied fully responsive answers to thirteen interrogatories, specifically 5, 6, 7, 14, 15, 17, 29, 30, 31, 38, 40, 59, and 61. In our view, the judge's finding cannot be reconciled with the fact that previously plaintiff found no deficiency in defendant's answers to those very questions.
The record shows that an order was entered on July 23, 2004, which required defendant to provide more specific answers to 46 of the 68 interrogatories propounded by plaintiff. A case management order entered on October 18, 2004, required defendant to comply with the July 23, 2004 order. By letter dated October 21, 2004, defendant's attorney provided supplemental answers to the interrogatories.
Plaintiff's counsel responded in a letter dated November 2, 2004, and identified the answers he considered not fully responsive. In his November 2, 2004 letter, plaintiff's counsel found defendant's answers to questions 5, 6, 7, 29, 30, 31, 38, 40, 59 and 61 to be acceptable, but objected to the answers to sixteen interrogatories, including 14, 15, and 17. See footnote 1 Furthermore, in July 2005, after defendant had again provided supplemental answers to the interrogatories, plaintiff moved to dismiss defendant's pleadings with prejudice and submitted to the court a memorandum which identified the discovery "still outstanding." However, in that memo, plaintiff's attorney did not identify defendant's answers to interrogatories 14, 15, or 17 as deficient.
Thus, when the judge rendered his decision on November 4, 2005, he found deficient answers to interrogatories that plaintiff's counsel found acceptable either in his November 2, 2004 letter or in his later memo detailing the discovery "still outstanding." Moreover, at the oral argument of this appeal, plaintiff's attorney essentially conceded that the answers provided by defendant in response to the judge's September 20, 2005 order were satisfactory. We therefore are convinced that the order entered on November 10, 2005, dismissing defendant's pleadings with prejudice cannot be justified by defendant's purported failure to abide by court orders mandating more complete answers to interrogatories.
Plaintiff nevertheless argues that the judgment and the interim orders should be affirmed because defendant failed to comply with the court's orders mandating the production of certain documents. We disagree. In addition to requiring defendant to provide more specific answers to interrogatories, the July 23, 2004 order required defendant to produce seventeen categories of documents. The case management order entered on October 18, 2004, required defendant to comply with the previous order. In his letter of October 21, 2004, defendant's attorney advised plaintiff's counsel that the documents were available for inspection and copying; however, plaintiff's counsel did not inspect the documents.
Plaintiff thereafter filed a motion seeking discovery relief, which was heard on January 21, 2005. At the argument on that motion, the judge asked plaintiff's counsel whether he would be satisfied if defendant's attorney made copies "of everything he has and sends them to you pursuant to [a] protective order." Plaintiff's counsel said that would be acceptable. The order entered on February 3, 2005, states in pertinent part, "The defendant shall provide the plaintiff with the documents it has referenced in its prior responses to document production requests on or before January 31, 2005." Defendant provided plaintiff with the documents on or about February 3, 2005.
Thereafter, plaintiff's attorney took the position that the documents that defendant provided pursuant to the February 3, 2005 order did not fully comply with the orders entered on July 23, 2004 and October 18, 2004. Even so, the orders on plaintiff's subsequent motions to dismiss were not based on defendant's failure to comply with the court orders requiring the production of documents.
Indeed, at the September 15, 2005 hearing on defendant's motion for reconsideration of the August 8, 2005 dismissal order, defendant's attorney noted that none of the orders entered by the judge after February 3, 2005, had addressed document production. Counsel asked the judge, "[W]hat portion of Your Honor's ruling has to do with documents[?]". The judge replied, "As you've said three times, neither one of my orders do refer to the documents."
Although the judge made clear that his dismissal orders had not been premised on defendant's failure to comply with orders requiring the production of documents, and the order reinstating defendant's pleadings entered on September 20, 2005, did not require the production of documents as a condition of reinstatement, the judge issued a letter on September 26, 2005, in which he stated that defendant must comply with the prior orders mandating production of documents. The judge added that if defendant "does not produce documents such as her income tax returns, obviously none of these documents can be produced by the defendant at the time of trial."
We are convinced that in these circumstances, it was error for the judge to rely upon defendant's failure to comply with the orders mandating the production of documents as a basis for dismissing defendant's pleadings with prejudice. The judge may have been correct in stating in his September 26, 2005 letter that the prior orders requiring the production of documents were still operative. However, in that letter the judge did not make clear that the failure to comply with those orders would result in a dismissal of defendant's pleadings with prejudice. In fact, the judge stated that lesser sanctions might be warranted if defendant failed to provide the documents as previously ordered.
Because the judge had not addressed the issue of document production in any order after February 3, 2005, and because defendant provided the documents as required by that order, any failure by defendant to comply with the earlier orders did not warrant entry of the order dismissing defendant's pleadings with prejudice. Any lack of compliance by defendant with the court's previous orders did not justify the "ultimate sanction" of dismissal with prejudice, particularly in light of the mixed messages conveyed by the judge in his September 26, 2005 letter.
Defendant additionally argues that the matter should be reassigned to another judge on remand because the judge purportedly made clear his hostility to defendant. Defendant contends that the judge was incensed by comments made by her attorney at the January 21, 2005 hearing. Counsel told the judge that he was satisfied with the answers that had been provided to the interrogatories. Counsel said that he would file "essentially the same answers" if ordered to supplement his responses because he would not "play the game."
Defendant argues that the judge's reaction to those comments affected his subsequent decisions in the matter. Defendant points out that at the hearing on September 15, 2005, the judge stated that it was not his "burden to go through every question when the defendant['s] attorney arrogantly stands in front of me and says[] he's not going to play this game."
Suffice it to say, we do not condone the comments of defendant's attorney. However, we are not convinced that the judge's subsequent decisions were the result of any hostility or prejudice towards defendant or her attorney as a result of those comments. Nevertheless, out an abundance of caution, we are convinced that on remand the matter should be reassigned to another judge in order to avoid even the appearance of bias or prejudice. See Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005) (ordering remand to another judge due to judge's prior involvement in the matter and his expressions of frustration with a party).
We therefore reverse the order entered on August 8, 2005, striking defendant's pleadings with prejudice; the November 10, 2005 order reinstating the August 8, 2005 order; the order entered on December 13, 2005, denying defendant's motion for reconsideration; and the default judgment entered on December 20, 2005. We remand the matter for further proceedings in conformance with this opinion.

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Reversed and remanded. We do not retain jurisdiction.
 
Footnote: 1 As a condition to vacating the August 8, 2005 order, the judge had required defendant to submit answers to questions 63, 64, 65, 66, and 67 for in camera review to determine whether they pertained to privileged attorney-client communications. In his decision on the record on November 4, 2005, the judge did not cite the answers to these interrogatories as a basis for dismissing defendant's pleadings.

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