ILAWE ED. ATEKHA v. NEW JERSEY CITY UNIVERSITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3653-10T4

ILAWE ED. ATEKHA,

Plaintiff-Appellant,

v.

NEW JERSEY CITY UNIVERSITY,

Defendant-Respondent.

__________________________________

April 18, 2012

Submitted February 29, 2012 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5604-09.

Ilawe Ed. Atekha, appellant pro se.

JeffreyS. Chiesa, Attorney General, attorney forrespondent (Lewis A.Scheindlin, Assistant Attorney General, of counsel; Christopher Huber, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff appeals from a Law Division order pursuant to Rule 4:23-5(a)(2) dismissing his complaint with prejudice for failure to answer interrogatories. We are not convinced defendant properly obtained or served the initial order of dismissal without prejudice under Rule 4:23-5(a)(1); and service was not timely made of the motion to dismiss with prejudice under Rule 4:23-5(a)(2). Therefore, we reverse the order of dismissal with prejudice and remand.

Plaintiff filed a pro se complaint in July 2009 alleging defendant New Jersey City University engaged in racial and national origin discrimination in its grading practices.1 The record indicates plaintiff had actively participated in the pre-trial phase of his case.2 He submitted to depositions, and attended a mediation session in February 2010, and paid part of the cost of the mediator's fee. Two deputy attorneys general apparently handled this case before the matter was transferred to the deputy who filed the motions to dismiss.

Plaintiff asserts he moved from his prior address in Newark in August 2010. However, he waited until November 16, 2010 to write to the civil case manager in Essex County to notify the court of the change. The letter did not disclose when plaintiff had moved. Plaintiff sent copies of his letter to the university's in-house counsel and the deputy attorney general who, unbeknownst to plaintiff, by that time had transferred the file. The deputy ultimately in charge of the case acknowledged in his brief that he received plaintiff's letter after the university's counsel forwarded it to him by email on November 30, 2010.

Thus, apparently unaware of plaintiff's change of address until November 30, 2010, the new deputy responsible for the file used plaintiff's Newark address on August 25, 2010 when he served interrogatories and a notice to produce on plaintiff, by regular and certified mail. The certified mail version was unclaimed and returned to the sender in September. The deputy asserts the regular mail was never returned.

The deputy then wrote to plaintiff on October 27, 2010, again to the Newark address, asserting plaintiff's responses were overdue and warning that responses were required within ten days "to avoid motion practice pursuant to N.J. R. 4:23-5." This letter also was sent by regular and certified mail. The certified version was returned unclaimed, apparently around November 16, 2010. The deputy acknowledges in his brief the letter sent by regular mail was returned to sender "several months" later.

Having received no response from plaintiff, defendant filed a motion to dismiss the complaint without prejudice pursuant to Rule 4:23-5(a). The deputy apparently served the motion on plaintiff at his Newark address by regular and certified mail. The cover letter to the clerk of the court was dated November 15, 2010. The deputy acknowledges in his brief that the certified-mail version of the motion was return unclaimed and the regular-mail version was returned undelivered "several months later."

Based on his receipt on November 30, 2010 of plaintiff's November 16, 2010 change-of-address letter, the deputy was aware the motion to dismiss was misdirected to plaintiff's old address, and plaintiff likely had not received formal notice of the motion. The court was apparently uninformed of this apparent lack of actual service, and the motion to dismiss without prejudice was granted December 3, 2010.

However, plaintiff acknowledges in his brief that he learned defendant "was trying to dismiss my case," when he called the clerk's office "around the end of November" to ascertain the status of his case. He asserted he called the clerk because he had been unsuccessful in contacting the deputy whom he thought was still handling the case, to discuss his ability to depose representatives of defendant. In response to this information, plaintiff asserts he unsuccessfully attempted to reach the same deputy to discuss defendant's effort to obtain dismissal of his complaint.

Defendant attaches no documentary proof, nor does the deputy assert in his brief that he served the December 3 order on plaintiff. However, in plaintiff's brief and in oral argument before the court, plaintiff denied receiving the December 3 order until he received the motion to dismiss with prejudice in February.

By letter dated January 31, 2011, but mailed February 1, 2011, defendant filed and served, this time at plaintiff's East Orange address, the motion to dismiss with prejudice. It was returnable February 18.3 Plaintiff acknowledges that he received the version sent by regular mail on February 7, informing him of the December 3 dismissal and the hearing on the motion to dismiss with prejudice. Although he also asserted he received "the registered one in February 9, 2011 . . . [which] contained the same thing," the deputy attached what appears to be the unclaimed mailer containing the motion to dismiss with prejudice.

Plaintiff wrote to the civil case manager February 14, 2011, with a copy to the deputy, stating he was not in good health and seeking postponement of the motion for three or four weeks. The deputy wrote to the court February 15 opposing the adjournment request, asserting plaintiff's opposition to the motion was due February 10, it had not been filed, nor had plaintiff responded to the outstanding discovery requests.

On February 18, plaintiff appeared in court to oppose the motion. Defense counsel did not appear in person, but the court secured his appearance by telephone. The judge explained to plaintiff the motion to dismiss with prejudice had been filed because he had not answered interrogatories and an order of dismissal without prejudice had already been obtained.

In opposition, plaintiff asserted he never received the discovery requests because he had moved and offered to show the court a letter from his landlord dated June 29, 2010 regarding his move, and his November 16 letter to the court and counsel. There is no indication the court admitted into evidence or reviewed the documents. Rather, the court questioned why plaintiff appeared if he had not received written notice. Plaintiff stated he first received written notice of the December 3 order and the motion to dismiss with prejudice in February. He acknowledged he learned of the motion to dismiss in late November from court staff.

The court granted the motion to dismiss with prejudice. The court discredited plaintiff's assertions that he had not received the discovery requests, the motion to dismiss without prejudice, or, until February, the order to dismiss without prejudice. In discrediting plaintiff, the court relied on his finding, without hearing testimony, that plaintiff lied to his law clerk earlier in the week by falsely asserting that he had obtained the deputy's consent to adjourn the motion. As noted above, the deputy wrote to the court expressly opposing the adjournment. Plaintiff responded he told the judge's clerk that he spoke to the deputy and "he never disagreed with me. He never said yes, he never said no. So, the next day I thought he agreed."

Plaintiff appeals, and asserts:

A PLAINTIFF WHO DID NOT RECEIVE INTERROGATORIES AND NOTICE TO PRODUCE, AND THERE WAS NO EVIDENCE TO PROVE OTHERWISE, SHOULD NOT BE SUBJECT TO DISMISSAL WITH OR WITHOUT PREJUDICE. THE PLAINTIFF WAS NOT IN ANY COMMUNICATION WITH THE APPELLEE FROM THE BEGINNING OF THE MOTION TO DISMISS UNTIL 11 DAYS TO DISMISS WITH PREJUDICE.

We are compelled to reverse. We are mindful that an abuse of discretion standard governs our review of trial court decisions related to discovery matters. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011); Bender v. Adelson, 187 N.J. 411, 428 (2006). We will not overturn sanctions for failure to make discovery when "just and reasonable under the circumstances." Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951). However, "[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." Zaccardi v. Becker, 88 N.J. 245, 253 (1982).

The two-stage process under Rule 4:23-5 for dismissal of a complaint for failure to answer interrogatories and failure to produce is designed "'to compel the answers rather than to dismiss the case.'" Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 4:23-5 (2011) (quoting 1990 Report of the Committee on Civil Practice, 125 N.J.L.J. Index Page 421 (1990)). See also Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 96 (App. Div. 2008) (construing Rule 4:23-5 "to reflect the ultimate objective to encourage resolution of disputes on the merits"). The initial dismissal without prejudice is designed to put a defaulting party on notice of his or her default and the consequences of it. Current N.J. Court Rules, supra, at comment 1.2 on R. 4:23-5. The moving party must then serve the order of dismissal on the defaulting party, which serves as yet another means to induce responses. See R. 4:23-5(a)(1). If the defaulting party is pro se, the moving party shall serve a prescribed form of notice, explaining the consequences of the order and process for vacating it. Ibid.; Current N.J. Court Rules, supra, Appendix II-A at 2493 (2011). If the moving party fails to properly serve the initial order, it is not entitled to dismissal with prejudice. St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 483-84 (App. Div. 2008).

Sixty days from the date of the order, a party may move for an order of dismissal with prejudice. R. 4:23-5(a)(2). The moving party shall, in the case of a pro se defaulting party, provide the court with an affidavit of service of the initial order, the prescribed notice, and an additional notice informing the defaulting party of the consequences of the motion to dismiss with prejudice. Current N.J. Court Rules, supra, Appendix II-B at 2493 (2011). The motion to dismiss with prejudice shall be granted unless the defaulting party has filed a motion to vacate the initial order and fully responded to the discovery, or "exceptional circumstances are demonstrated." R. 4:23-5(a)(2).

In this case, exceptional circumstances and numerous procedural infirmities warrant reversal. Starting with the service of the discovery, we are not satisfied plaintiff actually received the requests. Plaintiff denies receipt. Concededly, he was obliged to notify the court and counsel promptly of his move. Moreover, even in plaintiff's November 16 notification of a change of address, he did not inform counsel that he had moved in August, when the discovery was sent. Nonetheless, the purpose of Rule 4:23-5 is to secure answers. As we discuss below, we find insufficient credible evidence in the record to support the court's rejection of plaintiff's claim of non-receipt.

On November 30, 2010, when the deputy received plaintiff's November 16 notification that he was living in East Orange, the deputy was made aware plaintiff likely did not receive the motion papers that were mailed November 15 or later. Nonetheless, the record does not indicate the deputy informed the court; rather, the motion was allowed to proceed. We believe defendant was obliged to serve the papers again and seek an adjournment of the motion. Although the court was uninformed of the apparent lack of actual receipt, we believe the initial order of December 3 should be vacated.

There also is nothing in the record to support a finding that the December 3 order was properly served on plaintiff. Absent such service, defendant was not entitled to seek an order of dismissal with prejudice.

Moreover, service of the motion to dismiss with prejudice was made too late to be heard on the February 18, 2011 return date. Assuming the motion was mailed on February 1, service is deemed to have occurred on February 4, 2011. See R. 1:5-4(b); R. 1:6-3(c). That obviously was not sixteen days before the return date. See R. 1:6-3(a). Particularly given the late service, plaintiff's request for adjournment should have been granted.

Finally, under the circumstances, we owe no deference to the court's finding that plaintiff was not credible and the court's rejection of plaintiff's assertions that he did not actually receive the discovery requests, the initial motion, or, until February, the initial order. Once it was apparent there were genuine issues of fact material to plaintiff's defense of the motion, the court should have conducted an evidentiary hearing. Witnesses should have been sworn and subject to cross-examination. There is no indication the court considered plaintiff's documentation, or was aware the deputy was informed of plaintiff's move before the return date of the initial motion. It was inappropriate for the court to assess plaintiff's credibility based on the determination that plaintiff lied to the judge's staff, which necessarily implicated reliance on the staff's out-of-court and off-the-record statements. "[A] motion for dismissal with prejudice requires the trial court to make an informed decision based upon a full record, and express its reasons for that decision before the case is dismissed." Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 61 (App. Div.) ("exceptional circumstances" warrant reversal of dismissal with prejudice), certif. denied, 146 N.J. 569 (1996).

R

1 Neither party provided us with a copy of the complaint. We rely on defendant's description of plaintiff's allegations.

2 Both the pro se plaintiff and defendant improperly recite facts in their briefs unsupported by cognizable evidence, and attach as an appendix uncertified documents not apparently of record in the trial court. This is plainly improper, and violates Rule 2:5-4 and Rule 1:6-6. See Catton v. N.J. Full Ins. Underwriting Ass'n, 242 N.J. Super. 5, 6-7 (App. Div. 1990) (stating it is improper for parties to submit on appeal documents not before the trial court); Celino v. Gen. Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986)("Facts intended to be relied on which do not already appear of record and which are not judicially noticeable are required to be submitted to the court by way of affidavit or testimony."). Neither party has provided the court with the two notices of motions, supporting certifications of fact, and certifications of service. Nonetheless, many of the assertions of fact, as we note, are undisputed.

3 Although the cover letter was dated January 31, 2011, the post-mark of the certified letter is dated February 1, 2011. As noted previously, the certification of service is not provided.