MICHAEL WEST v. ORBIT DEVELOPMENT PARTNERS-51 L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1616-10T3

MICHAEL WEST and SAA HETEP

OBI,1

Plaintiffs-Appellants,

v.

ORBIT DEVELOPMENT PARTNERS-51,

L.L.C. and COGSWELL REALTY

GROUP, L.L.C.,

Defendants-Respondents.

________________________________

June 3, 2011

Submitted May 11, 2011 - Decided

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-041888-09.

Michael West, appellant pro se.

Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys for respondents (Bruce W. McCoy, Jr., of counsel and on the brief).

PER CURIAM

Plaintiffs appeal the dismissal of their Special Civil Part cause of action which the court dismissed for discovery violations pursuant to Rule 4:23-5(a)(1) and (2). We affirm.

The complaint, filed August 12, 2009, alleges that defendants' action caused flooding in plaintiffs' basement. Defendants propounded interrogatories upon plaintiffs on May 18, 2010. Plaintiffs failed to respond to the discovery request, resulting in defendants' motion to dismiss the complaint for failure to provide discovery. By order dated July 23, 2010, the court dismissed plaintiffs' complaint for failure to provide discovery pursuant to Rule 4:23-5(a)(1). Thereafter, plaintiffs moved for reconsideration, contending the interrogatories served upon them had not been received until July 25, 2010. The court denied reconsideration but ordered plaintiffs to produce to defense counsel, within twenty days, proof of postal issues that plaintiffs were allegedly experiencing with the post office, and to also provide an address to which the defense could forward correspondence within five days of the date of the order. Defendants served plaintiffs with a copy of the order by certified and regular mail. The certified mail was returned as undelivered. The order sent by regular mail was not returned.

Sixty days following the entry of the court's July 23 order, plaintiffs had not yet provided the outstanding discovery. On September 23, defendants moved to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2). In support of the motion, defense counsel submitted a certification in which he indicated that plaintiffs had not yet provided the outstanding discovery and had failed to provide a different address to defendants in accordance with the August 27 order. The motion was made returnable October 15. On October 14, defendants received plaintiffs' responses to the interrogatories.

Plaintiffs filed opposition to the motion. Although the opposition papers are dated October 12, the papers were stamped as being filed with the court as of October 15 at 2:54 p.m. The court entered its decision dismissing plaintiffs' complaint with prejudice for failure to provide discovery at 12:53 p.m. There was no request for oral argument and neither party appeared. It is unclear whether the court had received a separate copy of the opposition papers because there is no reference to plaintiffs' opposition in the court's decision. The order dismissing the complaint, however, indicates the motion was opposed. The present appeal followed.

Plaintiffs raise the following points for our consideration:

POINT I

THE TRIAL COURT'S ORDER SHOULD BE REVERSED BECAUSE THE TRIAL COURT WAS NOT MADE AWARE OF REL[E]VANT FACTS THAT WERE KNOWN TO . . . DEFENDANT-RESPONDENT[S'] ATTORNEYS AND WHICH SHOULD HAVE BEEN DISCLOSED TO PERMIT THE TRIAL COURT TO MAKE AN INFORMED DECISION.

POINT II

THE TRIAL COURT'S ORDER SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMIT[T]ED A HARMFUL ERROR DUE TO ERRORS IN FACTFINDING BECAUSE THE TRIAL COURT FAILED TO EXAMINE THE EVIDENCE PRESENTED IN . . . PLAINTIFF[S'] OBJECTION TO THE MOTION TO DISMISS, . . . PLAINTIFFS' DISCOVERY AND . . . PLAINTIFFS' INTERROGATORIES DESPITE THE FACT THAT THEY WERE IN THE TRIAL COURT'S POSSESSION AND . . . DEFENDANT-RESPOND[E]NTS' ATTORNEYS['] POSSESSION BEFORE THE DATE AND TIME THE ORDER WAS ISSUED BY THE TRIAL COURT.

POINT III

THE TRIAL COURT'S ORDER SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMIT[T]ED A HARMFUL ERROR BY ISSUING AN ORDER THAT WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE PRESENTED IN . . . PLAINTIFFS' OBJECTION TO THE MOTION TO DISMISS, . . . PLAINTIFFS' DISCOVERY MATERIALS AND . . . PLAINTIFFS' INTERROGATORIES WHICH WERE NOT REVIEWED BY THE TRIAL COURT.

POINT IV

THE TRIAL COURT'S ORDER SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMITED A HARMFUL ERROR BY ERROR IN GRANTING THE DEFENDANT-RESPONDENTS' MOTION TO DISMISS WITH PREJUDICE.

POINT V

THE TRIAL COURT'S ORDER SHOULD BE REVERSED BECAUSE THE TRIAL COURT COMMIT[T]ED A HARMFUL ERROR BY DENYING . . . PLAINTIFF DUE PROCESS WHEN IT PREVENTED . . . PLAINTIFF FROM FILING A MOTION TO VACATE THE ORDER WITHIN THE TIME FRAME ALLOTED BY STATE LAW BECAUSE BOTH THE TRIAL COURT AND . . . DEFENDANT-RESPOND[E]NTS FAILED TO PROVIDE . . . PLAINTIFFS WITH NOTICE THAT THE TRIAL COURT'S ORDER HAD BEEN ISSUED OR WITH A COPY OF THAT ORDER.

We have considered the arguments raised in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E). We add the following brief comments.

Plaintiffs' service of answers to interrogatories upon defendants one day before the return date of the motion to dismiss with prejudice failed to comply with Rule 4:23-5(a)(1) and (2), as the motion judge observed. Rule 4:23-5(a)(1) provides that a party who has failed to comply with a discovery demand, resulting in the dismissal of the party's complaint without prejudice, may seek reinstatement of the complaint at any time prior to the entry of an order dismissing the complaint with prejudice. A condition precedent to reinstatement requires the dismissed party to file a motion seeking reinstatement. The motion must be accompanied by an

affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided and shall be accompanied by payment of a $100 restoration fee to the Clerk of the Superior Court, made payable to the "Treasurer, State of New Jersey," if the motion to vacate is made within 30 days after entry of the order of dismissal or suppression, or a $300 restoration fee if the motion is made thereafter. 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 attorney's fees and costs, or both, as a condition of restoration.

Plaintiffs failed to timely file a motion seeking reinstatement. Moreover, to the extent plaintiffs were of the view their opposition substantially complied with the requirements of the rule and should have been treated as a cross-motion for reinstatement, the requisite reinstatement fee was not attached to their opposition. Finally, because defendants' motion sought dismissal with prejudice, plaintiffs were required to personally appear before the court on the return date of the motion. R. 4:23-5(a)(2). Plaintiffs failed to appear. Therefore, the court properly dismissed the complaint with prejudice.

Finally, we address plaintiffs' contention that defendants withheld information from the court, namely, that answers to interrogatories were received one day before the return date of the motion. In defendants' brief, defense counsel represents that he was out of the office on October 14 and did not have a chance to review the responses until the following morning, at which time he determined that the answers to the interrogatories were not fully responsive. At that point, the issue before the court was not the failure to provide discovery but the sufficiency of the responses. Adedoyin v. Arc of Morris Cnty. Chapter, Inc., 325 N.J. Super. 173, 179 (App. Div. 1999). Dismissal with prejudice under such circumstances is ordinarily inappropriate, and the court is required to adjudicate the dispute and, if necessary, enter an order compelling more specific responses. Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 373 (App. Div. 1992). Thus, it would have been appropriate for defense counsel to contact the court to advise of the most recent development. The failure to do so, however, is not dispositive since had plaintiffs personally appeared before the court as required on October 15, they could have alerted the court to the fact that answers to interrogatories had been provided, albeit grossly out of time.

Ultimately, our discovery rules are designed to ensure the timely exchange of all relevant information between parties, and the rules should not be used as a shield to deprive a deserving litigant of his or her day in court. Ponden v. Ponden, 374 N.J. Super. 1, 11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005).

Here, however, the record demonstrates that plaintiffs' conduct was inexcusable. In opposing defendants' motion to dismiss with prejudice, plaintiffs stated that the delay in providing timely responses to interrogatories and complying with the court's order was because of problems with the Newark Post Office. Any problems in securing proof of their difficulties with the post office did not explain why plaintiffs failed to provide an active address for the receipt of correspondence as ordered by the court or why plaintiffs failed to timely provide responses to the interrogatories which addressed the merits of plaintiffs' claims. Under these circumstances, we find the court's dismissal of the complaint with prejudice was entirely appropriate.

Affirmed.

1 The August 12, 2009 complaint refers only to Michael West as plaintiff. The December 24, 2009 complaint refers to Michael West and Saa Hetep Obi as plaintiffs. While the caption of appellants' brief refers only to Michael West as appellant, the body of the brief refers to Michael West and Saa Hetep Obi as appellants. Respondents' brief refers to Michael West and Saa Hetep Obi Shaaim Maa as appellants.