BOGDAN WROBEL v. WAYNE VF, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3843-10T2

BOGDAN WROBEL,

Plaintiff-Appellant,

v.

WAYNE VF, LLC,

Defendant-Respondent,

and

WAYNE VF, LLC,

Third-Party Plaintiff,

v.

INDUSTRIAPLEX, INC., US

MAINTENANCE, INC. f/k/a TOWER

CLEANING SERVICES, INC. d/b/a

US MAINTENANCE, and FM FACILITY

MAINTENANCE f/k/a IPT,

Third-Party Defendants,

and

INDUSTRIAPLEX, INC., US

MAINTENANCE, INC. f/k/a TOWER

CLEANING SERVICES, INC. d/b/a

US MAINTENANCE,

Fourth-Party Plaintiffs,

v.

PETER BRYN GENERAL CONTRACTOR,

Fourth-Party Defendant,

and

IPT, LLC d/b/a FM FACILITY

MAINTENANCE,

Fifth-Party Plaintiff,

v.

LEVEL 1 MAINTENANCE,

Fifth-Party Defendant.

________________________________________________________________

August 24, 2012

 

Submitted January 31, 2012 - Decided

 

Before Judges Espinosa and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0421-09.

 

Fishbeyn & Briskin, P.C., attorneys for appellant (Peter E. Briskin, of counsel; Brian J. Ewart, on the brief).

 

Respondent Wayne VF, LLC has not filed a brief.

 

PER CURIAM

Plaintiff filed a motion to file an amended complaint, adding a new defendant, after the expiration of the fourth extension of the discovery period and arbitration had been conducted. He appeals from orders that denied this motion and his motion for reconsideration. We affirm.

On January 27, 2009, plaintiff initiated this action, alleging that he was injured when he fell in a parking lot owned by defendant Wayne VF, LLC (Wayne VF). The complaint also alleged that unknown parties had been negligent in failing to correct a dangerous condition on the premises. The matter was assigned to Track II, which, pursuant to Rule 4:24-1(a), has a three-hundred-day discovery period.

Wayne VF filed its answer on March 25, 2009. After its motion for leave to file a third-party complaint was granted, Wayne VF filed a third-party complaint on September 17, 2009 against Industriaplex, Inc. and US Maintenance, Inc. f/k/a Tower Cleaning Services, Inc. d/b/a US Maintenance (US Maintenance), seeking contribution and indemnification based upon a service agreement. US Maintenance filed an answer in which it asserted it had subcontracted the snow/ice removal services to Peter Bryn General Contractor (Peter Bryn) and, consequently also filed a third-party complaint against Peter Bryn. Industriaplex also filed an answer in which it generally denied the allegations against it.

Pursuant to Rule 4:17-1(b)(2), Wayne VF was required to serve its "answers to the appropriate uniform interrogatories within 60 days after service by that defendant of the answer to the complaint." Accordingly, its answers were due sixty days after March 25, 2009. However, it did not serve its answers to Form C and C(2) interrogatories until September 26, 2009. The record does not reveal any motion practice by plaintiff to compel answers or seek sanctions pursuant to Rules 4:23-1 or 4:23-5 in the intervening four months.

On October 15, 2009, Wayne VF filed the first request to extend discovery, seeking an extension from the discovery end date (DED) of January 19, 2009 to March 20, 2010, pursuant to Rule 4:24-1(b).

After learning that its contractual relationship with US Maintenance and Industriaplex had terminated prior to plaintiff's injury, Wayne VF sought leave to file an amended third-party complaint against FM Facility Maintenance f/k/a IPT (IPT) on March 19, 2010, the day before the first extension of the DED expired. Wayne VF also requested a second sixty-day extension of the DED.

Wayne VF subsequently filed an amended third-party complaint on April 16, 2010, seeking contribution and indemnification from US Maintenance, Industriaplex and IPT. In May 2010, Wayne VF dismissed its claims against Industriaplex and US Maintenance, which, in turn, dismissed its claims against Peter Bryn.

At this point, the only remaining third-party defendant was IPT. Both IPT and Wayne VF filed motions in July 2010, seeking the third extension of discovery in the case. In addition, Wayne VF sought an order compelling plaintiff to produce documents to support his lost wages claims and IPT asked for case management.1

IPT filed a fifth-party complaint, seeking contribution and indemnification against Level 1 Maintenance (Level 1) on August 31, 2010. Level 1 never filed an answer or responsive pleading.

Aside from the form interrogatories that are deemed to be automatically served with the complaint pursuant to Rule 4:17-1(b)(2), the first discovery demand by plaintiff in the record is a notice to take oral deposition of "any executive, direct[or], manager, employee, agent or servant, [and] a representative of" Wayne VF on August 16, 2010, that was served July 26, 2010. The property manager ultimately produced on September 8, 2010 had no specific knowledge of the property where plaintiff's injury occurred.

The fourth motion to extend discovery was filed by IPT on September 24, 2010. Plaintiff represents that the motion was granted, extending the DED to December 18, 2010.2

Plaintiff received notice, dated October 21, 2010, that this matter was selected for mandatory non-binding arbitration. The notice stated, "No adjournments will be granted for reason of discovery absent exceptional circumstances." Rule 4:24-1(c) states, in pertinent part, "No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown."

Plaintiff filed a motion to amend his complaint on January 19, 2011 to substitute Aspen Environmental Company, LLC (Aspen) for the John Does 1-3 in his original complaint. In support of the motion, plaintiff submitted the certification of his counsel in which he stated that, at the arbitration on January 14, 2011, he was advised by counsel for IPT "that there was a company called Aspen that was employed by Level 1 Maintenance to provide snow removal services at the site of the complained of accident on the day of the incident." Counsel stated that despite "diligent efforts to discover the true identity of all defendants," Aspen was only identified two days prior to his certification. He therefore requested leave to amend the complaint pursuant to Rule 4:26-4 to state the true name of a defendant previously identified only as John Doe.

Plaintiff's motion was unopposed and, virtually simultaneously, Wayne VF and IPT both moved for summary judgment. Plaintiff's motion was denied by order dated February 4, 2011, which contained the following statement of reasons:

While motions to amend are liberally viewed the granting of this motion after 633 days of discovery, after 5 discovery extensions, after arbitration would unduly delay this matter. The information that prompted this motion was learned at the arbitration. Diligent inquiry during the 633 days of discovery that were afforded this matter would have revealed that same information 300 days ago.

 

Plaintiff filed a motion for reconsideration, which was denied by order dated March 18, 2011. Trial was scheduled for April 18, 2011.

The trial court granted summary judgment to Wayne VF and to IPT, dismissing all claims against them.

Plaintiff presents the following arguments in this appeal:

POINT I

 

BEST PRACTICES RULES ARE INTENDED TO BE FLEXIBLE.

 

POINT II

 

PLAINTIFF EXERCISED DUE DILIGENCE IN PURSUING HIS CLAIM.

 

POINT III

 

NO DEFENDANT WOULD BE PREJUDICED BY THE GRANT OF CROSS-MOTION.

 

POINT IV

 

PLAINTIFF'S CASE HAS BEEN SUBJECTE[D] TO GRAVE PREJUDICE.

 

After carefully considering these arguments in light of the record and the applicable legal principles, we are satisfied that these arguments lack merit.

Plaintiff did not request a further extension of discovery along with his motion to file an amended complaint. However, it is clear that, in order to grant plaintiff's motion, the court would have had to extend discovery yet again. The court's decision to deny the motion is subject to review for abuse of discretion. Bender v. Adelson, 187 N.J.411, 428 (2006); Leitner v. Toms River Reg. Sch., 392 N.J. Super. 80, 87 (App. Div. 2007); Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 472 (App. Div.), rev'd on other grounds, 185 N.J. 290 (2005).

Because plaintiff's request came after the expiration of the discovery period and after arbitration, he was required to show "exceptional circumstances" rather than merely "good cause" to obtain relief. The Supreme Court has stated, "[t]he mandate of Rule 4:24-1(c) could not be clearer: '[a]bsent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed.'" Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 396 (2005).

"Exceptional circumstances" requires "some showing that the circumstances presented were clearly beyond the control of the attorney and the litigant seeking an extension of time." Zadigan v. Cole, 369 N.J. Super. 123, 132 n.8 (Law Div. 2004). "The moving party must demonstrate counsel's diligence in pursuing discovery, establish the essential nature of the discovery sought, explain counsel's failure to request an extension within the original time period, and show that the circumstances presented were clearly beyond counsel's control." Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 479 (App. Div. 2012). "An excessive work load, recurring problems with staff, a desire to avoid expense associated with discovery, or any delays arising out of extended efforts to resolve [the] matter through negotiations generally will not be sufficient to justify an extension." Zadigan, supra, 369 N.J. Super. at 132 n.8.

In Huszar, supra, we observed that "a trial or arbitration date is critical to the trial judge's determination of whether to grant an extension of the discovery period under R. 4:24-1(c)." 375 N.J. Super. at 472; see also Ponden v. Ponden, 374 N.J. Super. 1, 9 (App. Div. 2004) (stating "that the absence of an arbitration or trial date at the time of the trial judge's ruling is of critical significance in a court's exercise of its discretion to extend discovery"), certif. denied, 183 N.J. 212 (2005).

Factors to be considered in determining whether a request to extend the time for discovery should be granted after the matter has been scheduled for arbitration or trial include:

First, as with motions considered within the original discovery period, any application should address the reasons why discovery has not been completed within [the] time [allotted] and counsel's diligence in pursuing discovery during that time. Any attorney requesting additional time for discovery should establish that he or she did make effective use of the time permitted under the rules. A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request. Second, there should be some showing that the additional discovery or disclosure sought is essential, that is that the matter simply could not proceed without the discovery at issue or that the litigant in question would suffer some truly substantial prejudice. Third, there must be some explanation for counsel's failure to request an extension of the time for discovery within the original discovery period. Finally, there generally must be some showing that the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

 

[Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003).]

Plaintiff's counsel made a conclusory statement in his certification that he had made diligent efforts to identify all responsible parties. However, he did not identify any of these efforts to obtain discovery in his application to the court. More was required to make show the existence of exceptional circumstances.

In this appeal, he has similarly failed to show the level of diligence necessary to support an application to extend discovery so belatedly. Aside from the form interrogatories automatically served upon the defendants by virtue of the complaint, the only additional discovery sought was the deposition of a representative of Wayne VF. Although the discovery period did not end until three months later, plaintiff has identified no additional discovery demands served in the interim to ascertain the identity of the contractor who performed the snow and ice removal at the property.

Plaintiff contends that the defendants' lack of diligence is responsible for him losing his day in court. He notes that Wayne VF did not provide answers to interrogatories until more than six months after serving its answer. However, the record includes no efforts to compel discovery or seek sanctions for Wayne VF's protracted delay in providing its response. He also states that Wayne VF had the relevant property management contracts in its possession but failed to review them in a timely manner. No explanation is provided for why plaintiff did not conduct his own review of these discoverable documents. In short, plaintiff failed to show that the circumstances that led to his discovery of Aspen were "clearly beyond the control of the attorney and litigant[.]" See Zadigan, supra, 369 N.J. Super. at 132 n.8. In this appeal, he has also failed to show that the motion judge's conclusion that the identity of Aspen could have been discovered during the discovery period with the exercise of due diligence was wrong.

Plaintiff contends that no defendant would suffer prejudice if his motion had been granted because he has all necessary evidence. However, there are no defendants from the original litigation that remain. Since Aspen is not a party, we have no information as to whether its ability to defend itself has been impaired by the passage of time.

Having reviewed plaintiff's application in light of the applicable legal principles, we are satisfied that the motion judge did not abuse his discretion in denying the motion to amend the complaint and the motion for reconsideration.

A

ffirmed.

1 A copy of the order disposing of these motions is not included in the record.

2 A copy of this order has not been included in the record.