DEJON WELCOME v. CABLEVISION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5298-07T25298-07T2

DEJON WELCOME, CIEMON MOUZON

and CONSTANCE COLEMAN,

Plaintiffs-Appellants,

v.

CABLEVISION, ANDRE DUBOSE,

JAMES MEAGHER, RICK KUERZI and

JERRY FLEISHER,

Defendants-Respondents.

________________________________________________________________

 

Argued March 9, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1828-07.

Harvey H. Rothman argued the cause for appellants (Gerald Poss, P.A., attorneys; Mr. Rothman, on the brief).

Rene M. Johnson argued the cause for respondents Cablevision, Rick Kuerzi and Jerry Fleisher (Morgan, Lewis & Bockius, LLP, attorneys; Ms. Johnson and Diane L. Lisowski, on the brief).

Law Office of Michael S. Rubin, LLC, attorney for respondents Andre DuBose and James Meagher, joins in the brief of respondents Cablevision, Rick Kuerzi and Jerry Fleisher.

PER CURIAM

Plaintiffs brought this action against their former employer and several of the employer's supervisors for damages arising out of an alleged hostile work environment and wrongful termination in retaliation for making complaints about the hostile work environment. Plaintiffs' complaint was dismissed with prejudice for failure to provide complete answers to interrogatories and completely respond to a demand for production of documents by order or April 11, 2008. On the same date, the court denied plaintiffs' motion to restore their complaint, which had previously been dismissed without prejudice. Plaintiffs' reconsideration motion was denied on May 23, 2008. This appeal followed. We conclude that dismissal was not warranted, and we accordingly reverse and remand, directing reinstatement of the complaint and imposition of an appropriate remedy for plaintiffs' discovery deficiencies.

Plaintiffs filed their original complaint on February 9, 2007. The complaint contained four counts alleging hostile work environment and seeking damages for emotional distress and stress-related physical ailments. The complaint alleged that defendants' conduct continued through the time plaintiffs were discharged or incurred disabilities in October 2006. By leave granted, plaintiffs later filed an amended complaint on August 23, 2007, adding a fifth count alleging wrongful discharge in retaliation.

On May 30, 2007, defendants served plaintiffs with interrogatories and document requests. Plaintiffs were non-responsive. Defendants provided discovery requested by plaintiffs. The court referred the case to mediation, which was scheduled for September 20, 2007. Because of the delay by plaintiffs in responding to discovery, mediation was adjourned, by mutual consent, to December 6, 2001, and, also by consent of the parties, the time for plaintiffs to furnish paper discovery was extended. Plaintiffs' depositions were scheduled for November 7 and 8, and December 3, 2007. Defense counsel wrote several letters urging plaintiffs' counsel to furnish discovery, in the absence of which defendants would not depose plaintiffs or participate in mediation, and, if the discovery was not furnished by October 30, 2007, would "file the appropriate motion to compel and/or dismiss."

On October 26, 2007, plaintiff, Ciemon Mouzon, provided interrogatory answers and a signed medical authorization form. Although the interrogatory answers had appended to them some tax information from 2005 and 2006, Mouzon did not respond to the request for production of documents, which requested, among other things, tax returns and related documents from January 1, 2000 forward.

On October 31, 2007, defendants filed a motion, pursuant to Rule 4:23-5, to dismiss the complaint without prejudice or, in the alternative, to compel plaintiffs to respond to the interrogatories and request for production of documents. The certification of defendants' counsel disclosed receipt of certified interrogatory answers and a signed medical authorization from Mouzon, but stated that her interrogatory answers were "not completely responsive," and that she did not respond to the request for production of documents. The certification also noted the absence of any responses to discovery by plaintiffs Dejon Welcome and Constance Coleman.

Welcome and Coleman did provide answers to interrogatories and sign medical authorizations, which were transmitted to defense counsel on October 31, 2007. It appears that defense counsel had not received them by the time the motion was filed, and that information was not included in counsel's certification. It also does not appear that defense counsel filed a supplemental certification informing the court of those responses from the other plaintiffs. In any event, Welcome and Coleman still did not respond to the request for production of documents, and their interrogatory answers, like Mouzon's, were not complete.

Plaintiffs did not oppose the motion. Through the cooperative efforts of counsel for both parties, it was agreed that the remaining information would be provided soon. Plaintiffs' counsel expected that he would be able to do so and would routinely apply for reinstatement of the complaint if the court dismissed it without prejudice. The most significant bone of contention was the absence of tax returns from all plaintiffs, which would provide important information with respect to their wage loss claims. Correspondingly, further information was requested regarding production of W-2 forms, identification of other employers from whom plaintiffs sought employment, and the like, all of which related to their wage loss claims.

During the pendency of the motion, defense counsel continued in the cooperative effort with plaintiffs' counsel. Accordingly, defendants' motion was postponed to allow plaintiffs' counsel additional time to provide requested information.

Finally, on December 20, 2007, the court entered an order dismissing the complaint without prejudice. The court struck the portion of the proposed form of order which would have ordered plaintiff to fully respond by a specified date rather than dismissing the complaint without prejudice.

On January 28, 2008, all three plaintiffs submitted to defense counsel responses to the document requests. With respect to request number nineteen, seeking copies of plaintiffs' Federal and State tax returns for the tax years 2000 to present, Welcome and Mouzon answered "See attached," and Coleman answered that she "does not have this document(s)." The record before us does not reveal what was attached to the responses by Welcome and Mouzon.

On the same date, January 28, 2008, plaintiffs moved to vacate the dismissal without prejudice and restore their complaint. See R. 4:23-5(a)(1). Defense counsel's opposing certification acknowledged that on January 28, 2008, "Plaintiffs finally served Defendants with Responses to Document Requests, along with additional documents," but that the responses "were deficient, and Plaintiffs failed to produce all of the responsive documents that they had, or should have had, in their possession." The certification acknowledged that "[s]hortly after Defendants filed their motion to Compel/Dismiss, but before the return date, Plaintiffs served Defendants with Interrogatory Answers for all three Plaintiffs," but the answers "were not fully responsive." Defense counsel further certified that plaintiffs had not supplemented their interrogatory answers or responses to document requests, and that they remained deficient.

In their brief in opposition to plaintiffs' motion, defendants pointed to specified deficiencies in response to certain interrogatories and document requests. Most of these dealt with the wage loss claim. Additionally, it was noted that, although plaintiffs identified several of their medical providers, they did not provide the full names and addresses of some of them. Defendants also argued that Coleman improperly objected to certain document requests.

According to defendants' brief, Coleman produced part of her 2006 tax return, Welcome produced his 2005 and 2006 Federal and State tax returns, and Mouzon produced her 2005 and 2006 W-2 forms, her 2005 Federal and State tax returns, and her 2006 Federal tax return (as well as some pay stubs from a subsequent employer). Coleman answered an interrogatory question stating that she would begin employment with a new employer in November 2007, but she did not submit any documentation pertaining to this subject.

Plaintiffs' counsel responded to defendants' opposition, stating that "interrogatories were answered" before the dismissal without prejudice and that plaintiffs lacked "any additional information or documents to add at this time." He acknowledged the continuing obligation to provide additional information "if anything else comes up during discovery."

On February 29, 2008, the court denied plaintiffs' motion "for reasons set forth in opposition, including failure to provide sufficient responses to discovery requests." On March 26, 2008, defendants moved for dismissal with prejudice. See R. 4:23-5(a)(2). Defendants' attorney certified that no further supplemental discovery had been provided since the court's order of February 29, 2008 denying plaintiffs' motion to restore, and that discovery remained deficient.

During the pendency of the motion, plaintiffs' counsel furnished significant additional information, including Internal Revenue Service (IRS) tax transcripts for Mouzon's 2000, 2002, 2003, 2004 and 2006 tax returns, and for Welcome's 2000, 2001, 2004 and 2006 tax returns. These transcripts contain detailed information, including the exact amount of wages and salaries reported, other income, total income, adjustments and credits, taxable income, taxes due, and the like. Obviously, they are not the actual tax returns. The transcripts are apparently available from the IRS at no cost, whereas the tax returns cost $39 for each tax year.

Plaintiffs opposed defendants' motion to dismiss with prejudice and cross-moved to restore the complaint. Plaintiffs' counsel certified that interrogatories had been fully answered by all three plaintiffs and that "plaintiffs have addressed the missing information and whatever documents plaintiffs have in their possession. The exception is plaintiff, Connie Coleman, who had no access to her tax returns which I had to subpoena from H&R Block." Counsel certified that "[t]he major problem with all plaintiffs has been in locating tax returns and documentation from prior jobs." He pointed out that his clients did not have copies of their tax returns, he issued a subpoena to H&R Block for Coleman's returns, and he furnished the tax transcripts, "although I still do not have all the tax returns."

Further, plaintiffs' counsel submitted by correspondence of April 1, 2008 supplemental interrogatory answers (as well as documents). This included, for example, information about job searches, employment status, and medical providers. While the motion was still pending, on April 9, 2008, plaintiffs' counsel furnished defendants' counsel with Coleman's 2003 Federal and New Jersey tax returns, and on April 10, 2008, he sent Mouzon's 2002 Federal tax return.

On April 11, 2008, plaintiffs' counsel appeared in court on the return date of defendants' motion, as required by Rule 4:23-5(a)(2). All of the plaintiffs had been noticed, as required by that rule, and two of them appeared in court. The rule provides that "[t]he moving party need not appear," and defendants' counsel did not appear.

In brief colloquy with the court, plaintiffs' counsel stated that "[t]he bulk of the issue appears to revolve around tax returns." He explained the difficulty in obtaining the returns and his efforts to get them, which were continuing, and that he had supplied the IRS transcripts. Counsel further pointed out that of the limited "issues that are open here," they are "clearly issues that could be addressed easily at depositions." Counsel expressed his regret that he had not responded to defendants' initial motion to dismiss without prejudice or compel discovery, because he "would've asked for the alternate relief, which would've been for the Court to order more specific answers to interrogatories."

On the record, the judge expressed two bases for granting defendants' motion and denying plaintiffs': (1) Plaintiffs could have and should have obtained and produced the requested tax returns by then; and (2) Plaintiffs' supplemental interrogatory answers of April 1, 2008, submitted by plaintiffs' counsel through correspondence, were neither sworn nor certified by plaintiffs. The judge entered two orders on April 11, 2008. One granted defendants' motion to dismiss the complaint with prejudice and bore the notation: "Dismissal Granted for reasons contained in Defendants' submissions and reasons placed on the record." The other order denied plaintiffs' motion to restore the complaint and bore a similar notation: "Denied for the reasons contained in Defendants' Submissions and reasons placed on the record."

On April 21, 2008, plaintiffs moved for reconsideration or to vacate the April 11, 2008 dismissal with prejudice. Plaintiffs argued that the discovery dispute involved their alleged failure to be fully responsive, and not a failure to respond to discovery requests. Plaintiffs continued furnishing information to defendants. On April 23, 2008, they furnished defendants' counsel with Coleman's Federal and State tax returns from 2004 through 2007, as prepared by H&R Block and Jenkins Tax & Service Center, and other documentation. Plaintiffs' counsel advised the court that his clients could not afford to pay the IRS for the missing tax returns, but he was going to advance the money and request them from IRS. However, there would be some delay in obtaining them. Defendants opposed the motion, insisted that there were still deficiencies outstanding, and, pursuant to Rule 4:23-5(a)(2), "[t]he motion to dismiss . . . with prejudice shall be granted" unless "either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated." Defendants argued that plaintiffs failed to satisfy either condition, thus requiring mandatory dismissal with prejudice.

The judge agreed, and on May 23, 2008 entered an order denying plaintiffs' motion "for reasons contained in opposition."

Rule 4:23-5 prescribes a two-step procedure for a party seeking dismissal of a complaint or suppression of a responsive pleading for failure to meet discovery obligations. In the first step, upon demonstrating failure to comply, dismissal without prejudice is the presumptive relief available. R. 4:23-5(a)(1). However, on a showing of good cause, "other relief" may be more appropriate and may be granted. Ibid. See also Adedoyin v. Arc of Morris County Chapt., Inc., 325 N.J. Super. 173, 182 (App. Div. 1999). Further, Rule 4:23-5(c) makes clear that prior to initiating the two-step process, a party may, as an alternative, move for an order compelling production of demanded documents. Had plaintiffs opposed defendants' initial motion and informed the court that all three plaintiffs had provided certified answers to interrogatories and signed medical authorizations, and were having difficulty but were making efforts to obtain copies of tax returns, the court may well have found good cause and ordered the alternate relief requested, namely setting a deadline to compel production of the missing information, rather than dismissing the complaint without prejudice. However, there was no opposition, and the court acted appropriately in light of the information provided in support of the motion by granting the presumptive relief of dismissal with prejudice.

But much more happened after that. Plaintiffs provided some of the tax information and demonstrated that they were on their way to obtaining all that was requested. It is important to note that there was no contention that any time constraints existed and would cause prejudice to defendants or otherwise impermissibly delay the prosecution of this litigation. It was just a matter of getting the discovery done. As we have stated, defendants acted cooperatively, and they cannot be faulted. However, by April 11, 2008, plaintiffs had come a long way and furnished substantial information. They also provided a reasonable explanation as to why they had not yet obtained all of the required tax returns, but were in the process of doing so.

Thus, plaintiffs were not totally unresponsive, clearly distinguishing this from the situation we found fatal to the delinquent party in Cooper v. Consolidated Rail Corp., 391 N.J. Super. 17, 23 (App. Div. 2007). Rather, a deeper analysis required consideration "in the context of the specific cause of action and the progress of discovery to date." Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 377 (App. Div. 1992). We there noted that "[t]here is a broad area for bona fide dispute between answers which are patently inadequate and a set of answers which fully meets the propounder's expectations." Ibid. We considered in our analysis in that case supplemental information furnished by the delinquent party after the order dismissing with prejudice but before the return date of that party's reconsideration motion. Id. at 372-73. The same occurred in this case. We noted in Zimmerman that where "the real contour of the dispute is defendants' request for more specific answers, then the judicial obligation is to adjudicate that dispute, not to dismiss the action with prejudice." Id. at 377.

The answers provided must be viewed as a whole, not question by question. Ibid. Obviously, if several or many questions or document demands are not responded to or not fully responded to, it can be said that there has been a failure to respond with respect to those specific items. However, that is not the proper analysis. The ultimate issue is one of an appropriate remedy, which, when substantial information has been provided, may well be an order compelling more specific answers or setting a reasonable deadline for answers or information that have not yet been provided. Ibid. The remedy in this case could include, for example, barring plaintiffs from presenting wage loss evidence. Id. at 378; R. 4:23-2(b)(2). Thus, "when the real discovery dispute is not a failure to answer but rather an alleged failure to answer in a 'fully responsive' manner, it is the dismissal with prejudice which is inappropriate unless the answering party has been ordered to answer more fully and fails to do so." Zimmerman, supra, 260 N.J. Super. at 378.

The judge gave two specific reasons for dismissing with prejudice and refusing to restore the complaint. The first dealt with the tax returns. We initially note that some aspects of plaintiffs' claims did not involve claims for wage loss. The hostile work environment claim sought damages for emotional and physical distress. Thus, at least with respect to the first four counts of the complaint, the wage loss information was of little or no importance. Further, plaintiffs had furnished substantial information and were in the process of obtaining the additional information required. Thus, plaintiffs' responses were not "patently inadequate," although they did not "fully meet[] the propounders' expectations." Id. at 377. Under those circumstances, dismissal with prejudice was not the appropriate remedy.

The judge's second reason was that the supplemental answers were not sworn or certified by plaintiffs. That reason was legally deficient. Interrogatories must be answered under oath by the party upon whom served. R. 4:17-4(a). And, parties are under a continuing obligation to provide updated information by way of amended answers after the initial responses are submitted. R. 4:17-7. That rule provides in part: "All amendments to answers to interrogatories shall be binding on the party submitting them. A certification of the amendments shall be furnished promptly to any other party so requesting." Ibid.

It is not uncommon for attorneys to submit updated information, complying with their continuing obligation to amend interrogatory answers, by correspondence. By court rule, the party represented by such an attorney is bound by such an amendment, and, if the opposing party requests it, the answering party must submit a certification of the amendments. See Eden v. Conrail, 175 N.J. Super. 263, 282 (App. Div. 1980) (holding that uncertified interrogatory answers are binding on a party whose attorney submitted them), modified on other grounds, 87 N.J. 467 (1981). Most importantly, defendants could have (and still can) request a certification from the individual plaintiffs, which plaintiffs will then be required to furnish. This was not a proper basis for finding a discovery violation justifying dismissal with prejudice.

Dismissal with prejudice is, of course, the ultimate sanction, and should be avoided unless no lesser remedy is reasonably available. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499 515 (1995). "Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not bar a litigant's way to the courtroom." Audubon Volunteer Fire Co. v. Church Constr. Co., 206 N.J. Super. 405, 407 (App. Div. 1986). We will not interfere with the exercise of discretion by a trial court in discovery matters unless the judge mistakenly exercised his or her discretion. Abtrax, supra, 139 N.J. at 517. We conclude that this is such a case and our intervention is warranted.

Substantial information had been provided. More was on the way. Some of the missing information pertained to only some of plaintiffs' claims. There was at least one dispute regarding the appropriateness of demands made of Coleman for certain information. No time constraints were implicated and defendants suffered no prejudice. The court had an obligation to narrow the issues in dispute and enter an appropriate order, ruling on objections to discovery requests, ordering more specific answers to those deemed lacking in sufficient specificity, and setting a reasonable deadline to produce any missing information. Of course, the court also possessed the authority (and still does) to impose appropriate sanctions on plaintiffs' counsel for his dilatoriness, to compensate defense counsel and the court for the inconvenience and additional work necessitated by his conduct. And, after completion of paper discovery, as is typical, depositions of plaintiffs are the vehicle to explore apparent inconsistencies, inaccuracies, and omissions in the written responses, and to explore the details of plaintiffs' factual allegations. See Zimmerman, supra, 260 N.J. Super. at 379 n.1.

Accordingly, we reverse the orders of April 11, 2008 granting defendants' motion to dismiss with prejudice and denying plaintiffs' motion to restore. We remand for further proceedings consistent with this opinion, leaving to the sound discretion of the trial court determinations regarding further discovery proceedings.

 
Reversed and remanded. We do not retain jurisdiction.

Although the notice of appeal is from the order denying reconsideration, the accompanying case information statement identified as the proposed issues on appeal that "[t]he court below abused it's [sic] discretion in dismissing the complaint with prejudice without ever attempting to adjudicate the discovery dispute." Plaintiffs attached the orders of April 11, 2008 dismissing the complaint with prejudice and denying plaintiffs' motion to restore, as well as the May 23, 2008 order denying reconsideration. The notice of appeal and case information statement were filed on July 7, 2008, within forty-five days of the order denying the reconsideration motion. The parties have briefed and argued all of the substantive issues. Defendants did not move for dismissal of the appeal from the April 11, 2008 orders as untimely. We reject defendants' argument that those orders are not properly before us and that our review should be limited solely to the propriety of denying the reconsideration motion. When considering the tolling provisions of Rule 2:4-3(e), defendants argue that the time for filing an appeal from the April 11, 2008 orders expired on June 20, 2008, seventeen days prior to plaintiffs' filing. Defendants assert no prejudice occasioned by the seventeen-day delay, and, in the interest of justice, we will decide the merits of the substantive orders. See R. 2:4-4(a).

(continued)

(continued)

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A-5298-07T2

April 28, 2009