DAVID McELVEEN v. CATHEDRAL HEALTHCARE SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2394-11T1

DAVID McELVEEN and

DEBORAH McELVEEN,

Plaintiffs-Appellants,

v.

CATHEDRAL HEALTHCARE SYSTEM,

COLUMBUS HOSPITAL OF NEWARK, N.J.,

GLORIA O. NWANKWO, D.O., RAMEZ W.

SAMUEL, M.D., LATIF MCMORAN,

HUSKY LADDER, INC. and TRICAM

INDUSTRIES, INC.,

Defendants,

and

THE HOME DEPOT, INC.1,

Defendant-Respondent.

___________________________________

March 6, 2013

Argued October 24, 2012 - Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No.

L-7759-07.

Daniel B. Needle argued the cause for appellants (Kohn, Needle and Silverman, attorneys; Mr. Needle, on the brief).

Irene N. Komandis argued the cause for respondent (Hill Wallack, LLP, attorneys; Suzanne M. Marasco, of counsel; Ms. Komandis and Cherylee O. Melcher, on the brief).

PER CURIAM

Plaintiffs David and Deborah McElveen appeal from an order dismissing their complaint against defendant Home Depot U.S.A. Inc. (Home Depot) with prejudice pursuant to R. 4:23-5(a)(2) for failure to provide discovery, and a subsequent order denying their motion for reconsideration. Because we conclude that the trial court mistakenly exercised its discretion in dismissing the complaint with prejudice, we reverse.

David McElveen fell off a ladder on September 28, 2005. Plaintiffs filed their complaint on September 26, 2007 against several defendants alleging defects in the ladder and medical malpractice arising out of treatment McElveen received for his injuries. They apparently failed to serve the complaint timely and it was administratively dismissed in April 2008. Home Depot was finally served in August 2008 and the complaint reinstated.

After obtaining an extension of time to answer, Home Depot served plaintiffs with its responsive pleading on February 26, 2009 and a request for answers to Form A, A(2) and per quod interrogatories as well as a response to a notice to produce. Plaintiffs failed to serve any response to those discovery requests, eventually resulting in a motion to dismiss. Prior to the return date, plaintiffs served responses to Form A and A(1) interrogatories but failed to provide any response to Form A(2) and per quod interrogatories or a response to the notice to produce. The parties entered into a consent order for the production of the remaining discovery and the motion was withdrawn.

Plaintiffs subsequently responded to the notice to produce and Home Depot requested more specific answers to Form A interrogatories, served a set of supplemental interrogatories and requested execution of several medical authorizations. When the requested discovery was not provided, Home Depot moved to dismiss the complaint without prejudice returnable November 20, 2009. The motion went unopposed and was granted on the return date. Plaintiffs counsel acknowledges that his office received service of the order but avers that it was not brought to his attention at that time.

Unbeknownst to Home Depot, plaintiffs' counsel's father had died the week before the motion was filed. Preoccupied with the passing of his father and the need to urgently attend to matters concerning his father's estate, including care of his father's disabled widow who lives out of state, plaintiffs' counsel failed to serve his clients with the notice required by R. 4:23-5(a)(1), or cure the discovery default in the ensuing sixty days.

Home Depot thereafter moved for dismissal with prejudice returnable March 5, 2010. On the day before the return date of the motion, plaintiffs served responses to the discovery and filed a cross-motion to vacate the dismissal and reinstate the complaint with a request that the court waive the $300 restoration fee given the circumstances. When he appeared the following morning at nine o clock, plaintiffs' counsel was advised that the judge was not in the courthouse and that the order dismissing the complaint with prejudice had already been signed. Plaintiffs cross-motion had been rejected as untimely.

Plaintiffs timely moved for reconsideration. Home Depot opposed the motion on the grounds that full and responsive discovery had not been provided and plaintiffs had failed to pay the restoration fee. Specifically, Home Depot argued that in their last minute production, plaintiffs had still failed to provide executed medical authorizations or more specific answers to Form A interrogatories. After hearing oral argument, but without reviewing the discovery, the judge denied the motion on the basis that the motion to reinstate was untimely and plaintiffs had failed to fully comply with discovery or pay the restoration fee. Following resolution of the remainder of the case, plaintiffs filed this appeal.

We note at the outset that we do not approve of or condone the desultory pace at which plaintiffs' counsel prosecuted this matter and responded to legitimate discovery demands. Nevertheless, "[i]t is well-established that the main objective of the two-tier sanction process in Rule 4:23-5 is to compel discovery responses rather than to dismiss the case." A&M Farm & Garden Ctr. v. Am. Sprinkler Mech., L.L.C., 423 N.J. Super. 528, 534 (App. Div. 2012). Although this case was decided in the trial court before we issued A&M Farm & Garden Ctr., that case did not plow new ground, but continued our long insistence on the trial court's scrupulous adherence to the rule's procedural requirements. See, e.g., Adedoyin v. Arc of Morris Cnty. Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999).

Here, it is plain that the procedure mandated by the rule was not followed. Plaintiffs' complaint was dismissed with prejudice without proof that plaintiffs' counsel had served plaintiffs with the order and notices required under R. 4:23-5(a)(1) and (2), without consideration of the cross-motion to reinstate, and without allowing counsel to appear and be heard on the return date. R. 4:23-5(a)(3). Home Depot argues that these procedural problems were cured on the motion for reconsideration. We disagree.

The motion for reconsideration was denied because the judge found that plaintiffs served the overdue discovery and cross-motion to reinstate the day before the return date of the motion to dismiss with prejudice. The court concluded that the cross-motion was untimely and thus defendant was entitled to dismissal of the complaint with prejudice. That was error. The rule expressly prohibits the entry of a motion to dismiss with prejudice when a motion to reinstate has been filed "and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated." R. 4:23-5(a)(2); accord St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 485 (App. Div. 2008).

On the return date of the motion for reconsideration, the court was presented, not with an all-out failure to comply with discovery, but with a bona fide dispute over the responsiveness of the discovery plaintiffs had provided. Those circumstances compelled the court to review and adjudicate the discovery dispute, Zimmerman v. United Servs. Auto. Ass'n., 260 N.J. Super. 368, 377 (App. Div. 1992), including whether plaintiffs' counsel's explanation for his failure to timely respond to the motion to dismiss constituted exceptional circumstances justifying relief from the rule,2 Adedoyin, supra, 325 N.J. Super. at 182. As Judge Pressler noted in Zimmerman,

this much at least is clear. If the set of answers, considered in the context of the specific cause of action and the progress of discovery to date would have been sufficient to withstand a motion for dismissal without prejudice under R. 4:23-5(a)(1), then it is also sufficient to withstand a motion for dismissal with prejudice under R. 4:23-5(a)(2).

[Zimmerman, supra, 260 N.J. Super. at 377.]

The trial court's failure to vacate the dismissal of the complaint without reviewing the discovery plaintiffs had provided in response to Home Depot's demands or considering whether exceptional circumstances justified any dereliction, constituted a mistaken exercise of its discretion. St. James AME Dev. Corp., supra, 403 N.J. Super. at 484 (holding that "[w]hether to grant or deny a motion to reinstate a complaint lies within the sound discretion of the trial court.").

We reverse and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 Defendant notes that its name is Home Depot U.S.A. Inc., improperly pled as The Home Depot, Inc.

2 Home Depot also contends that plaintiffs' failure to pay the restoration fee mandated dismissal with prejudice. We note that plaintiffs had requested waiver of the fee in their motion to reinstate. We do not consider the failure to tender the restoration fee with the motion as fatal under these circumstances. The court is free to condition reinstatement on payment of the fee. Cf. A&M Farm & Garden Ctr., supra, 423 N.J. Super. at 539 (noting that reinstatement in that case could be conditioned on the imposition of appropriate sanctions, such as attorney's fees and costs).