JORGE AGUIRRE v. RONY HUMBERTO MORALES-RIVAS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5328-07T15328-07T1

JORGE AGUIRRE,

Plaintiff-Appellant,

v.

RONY HUMBERTO MORALES-RIVAS

and JOSE A. VIDES,

Defendant-Respondents,

and

STATE NATIONAL INSURANCE COMPANY,

Defendant.

________________________________________________________________

 

Submitted May 26, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1851-06.

Robert C. Diorio, attorney for appellant.

Soriano, Henkel, Biehl & Matthews, attorneys for respondent Rony Humberto Morales-Rivas (Peter DeSalvo, Jr., on the brief).

Respondent Jose A. Vides has not filed a brief.

PER CURIAM

Plaintiff, Jorge Aguirre, appeals from Judge Espinosa's order of June 6, 2008 dismissing his personal injury complaint with prejudice for failure to provide discovery. Plaintiff argues that the judge erred because his failure to comply with the court's discovery order was not deliberate and contumacious. We reject plaintiff's argument and affirm.

On May 23, 2004, plaintiff was involved in a motor vehicle accident with a vehicle being operated by one defendant and owned by the other. Plaintiff claimed he was injured in the accident and filed this complaint against defendants on May 18, 2006. In his interrogatory answers, plaintiff included reference to an injury to his right ankle.

Plaintiff was deposed on July 18, 2007. He revealed that he had applied for social security disability benefits and stated that he had his application for those benefits at home. At the conclusion of the deposition, on the same date, defense counsel wrote to plaintiff's counsel demanding production of the application for social security disability benefits.

Plaintiff's counsel failed to produce the document. The attorneys engaged in conversations and exchanged correspondence on the subject, in the course of which plaintiff's counsel described efforts that were being made to obtain the requested document. However, the document was not produced, and on August 22, 2007, defendants moved to extend the September 25, 2007 discovery end date and to compel plaintiff to produce the application. Plaintiff did not oppose the motion, and an order was entered on September 26, 2007 compelling production of the application within twenty days and extending discovery to November 25, 2007.

Plaintiff did not produce the application, and on October 30, 2007, defendants moved for dismissal of the complaint without prejudice for failure to comply with the discovery order. Again, plaintiff did not oppose the motion. An order was entered on December 7, 2007 dismissing the complaint without prejudice.

Plaintiff continued to fail to produce the application. Thus, on March 20, 2008, defendants moved to dismiss the complaint with prejudice. On April 4, 2008, plaintiff filed opposition to that motion and a cross-motion to vacate the dismissal without prejudice and reinstate the complaint. In support of his opposition and cross-motion, plaintiff's counsel filed certifications from a secretary and administrative assistant in his office explaining unsuccessful efforts that had been made to obtain a copy of the application from the Social Security Administration. As the judge later noted, these certifications were filled with hearsay and double hearsay statements regarding those efforts.

The motions came before Judge Espinosa on April 11, 2008. Defense counsel explained that he learned for the first time in this round of motions that plaintiff's right foot was amputated on December 11, 2007. Although it was represented by plaintiff's counsel that the amputation was secondary to plaintiff's diabetic condition, which had been the basis for his application for disability benefits, defense counsel considered the application for those benefits critical to distinguish between complaints and symptoms plaintiff experienced related to his injury from the accident as opposed to the diabetes. Plaintiff's counsel, who had not recently been in touch with plaintiff, was unable to rule out any causative effect for the amputation derived from the injuries suffered in the accident. It is undisputed that plaintiff was declared disabled by the Social Security Administration as of July 1, 2005, more than a year after the accident.

This colloquy occurred at the April 11, 2008 hearing:

THE COURT: You know, he's saying that he's hearing for the first time about an amputation. I take it that he's never received any kind of support for a claim that the amputation is related to the liability here.

[PLAINTIFF'S COUNSEL]: And just reading it from what I see here it looks like it was from complications from diabetes and other health-related issues. I don't --

THE COURT: So you would not make that claim here?

[PLAINTIFF'S COUNSEL]: I don't know if anyone can really do that, Your Honor, and I don't see anything in the file --

THE COURT: Okay.

[PLAINTIFF'S COUNSEL]: -- that's gonna be able to let us jump from this accident to the amputation of the foot given the course of time. I don't know. I mean, that's, but I would highly doubt, but I can't say.

[DEFENDANTS' COUNSEL]: Yeah, the last -- the last report I have, Judge is from Dr. Wujac (phonetic) dated September 27, 2007 who talks about, "The most ominous at this point, indeed is the injury to the right lower extremity foot and ankle." Of course, that report predates the amputation.

. . . .

[DEFENDANTS' COUNSEL]: . . . . I need to get this application to see what his basis was for filing for social security disability 'cause it's a real issue about the diabetic condition. . . .

Judge Espinosa agreed that the social security disability benefit application was critical to the defense. She noted that the initial request for the document occurred on the day of plaintiff's deposition, July 18, 2007, and that a court order had been entered on September 26, 2007 compelling plaintiff to produce the document. The judge admonished plaintiff's attorney: "When the case is dismissed and you know that in 120 days it can be dismissed with prejudice if the deficiency isn't cured. It's really not enough to have a secretary send a letter."

Plaintiff's counsel requested thirty to forty-five days to obtain the application. Defendants' counsel did not object to the request. The judge agreed and continued the motion for nearly two months, until June 6, 2008. She emphasized to plaintiff's counsel that no more excuses would be accepted and that the document must be produced within the extended time. She said:

So somebody has to drive to Baltimore, send it Federal Express, whatever it takes, but I think that, you know, when it was dismissed without prejudice in December and no representa -- no request has been made by the court, none of the prior orders were opposed, no representation has been made to the court as to the mental or physical state of the plaintiff. There is no, no facts have been presented to the court as to why this relief should not be granted.

I have nothing here except secretaries tried and that's just not enough. It's just not enough.

By June 6, 2008, plaintiff had still not produced the document. Both counsel exchanged letters with the court at or about that time. In his letter, plaintiff's counsel attached copies of letters written by his office and responses received from the Social Security Administration and urged that dismissal of the complaint would be inappropriate because plaintiff's "inability to produce his application is clearly not deliberate and contumacious."

The judge issued an order on June 6, 2008 dismissing the complaint with prejudice.

Rule 4:23-5(a) 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. 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 for production of demanded documents. That is the procedure that defendants followed in this case. Thus, the basic two-step process was converted into a three-step process, which is more indulgent to the non-complaint party. After the expiration of sixty days from the order of dismissal without prejudice, if non-compliance continues, the moving party may move further for dismissal with prejudice, which shall be granted if the demanded discovery has not been provided, unless exceptional circumstances are demonstrated. R. 4:23-5(a)(2).

We will not interfere with the decision of a trial judge in a discovery matter unless the judge mistakenly exercised his or her discretion. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). "The dismissal of a party's cause of action, 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." Id. at 514.

Plaintiff relies upon the last quoted phrase, arguing that his failure to produce the application was not "deliberate and contumacious." By way of reply, defendants point out that nowhere in this record has plaintiff filed a certification to refute his own sworn deposition testimony that he had a copy of the application at his home. Thus, defendants argue that plaintiff failed to demonstrate that his non-production of the document was not willful. Plaintiff, on the other hand, points to the information in the certifications of staff members of plaintiff's attorney's office and copies of letters received from the Social Security Administration in response to efforts made to obtain the application, and suggests that this information establishes that ongoing efforts were being made to comply with the discovery request and order.

We need not determine whether there has been a willful refusal to comply with discovery. In our view, the alternative basis in Abtrax provided for dismissal with prejudice, namely that the missing "discovery goes to the very foundation of the cause of action," is controlling. For the reasons we have explained, and as recognized by Judge Espinosa and not denied by plaintiff's counsel, this application form was critical to assist defense counsel in refuting any claim that the amputation of plaintiff's foot was not solely as a result of his diabetic condition but related to injuries suffered in the automobile accident. This was essential discovery. It was within the power of plaintiff to obtain and produce it.

Nearly eleven months transpired from when the document was first demanded on July 18, 2007, until the dismissal with prejudice order of June 6, 2008. Even after a long period of defalcation, on April 11, 2008, the judge indulgently granted plaintiff nearly two additional months to comply. The judge did not mistakenly exercise her discretion in determining that the continued efforts at compliance, by correspondence to a regional office of the Social Security Administration, were inadequate and should not serve to further delay dismissal without prejudice. In light of the nature of plaintiff's claim in this action, other remedies, short of dismissal with prejudice would not have been adequate.

Affirmed.

 

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A-5328-07T1

June 23, 2009