WAYNE MC GRIFF v. VOLKSWAGEN CORP., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1475-04T31475-04T3

WAYNE MC GRIFF,

Plaintiff-Appellant,

v.

VOLKSWAGEN CORP., AG, VOLKSWAGEN

OF AMERICA, INC., and DAVID MICHAEL

MOTOR CAR CORPORATION d/b/a DAVID

MICHAEL VOLKSWAGEN OF FREEHOLD,

Defendants-Respondents,

and

DAVID MICHAEL MOTOR CAR CORPORATION

d/b/a DAVID MICHAEL VOLKSWAGEN OF

FREEHOLD,

Third Party Plaintiff,

v.

VOLKSWAGEN OF AMERICA, INC.,

Third Party Defendant-Respondent.

_________________________________________

 

Argued October 12, 2005 - Decided

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County,

L-2563-02.

M. Sonia Rodriguez argued the cause for appellant (Fusco & Macaluso, attorneys; Ms. Rodriguez, on the brief).

Peter J. Kurshan argued the cause for respondent Volkswagen of America, Inc. (Chase, Kurshan, Herzfeld & Rubin, attorneys; Mr. Kurshan, of counsel and on the brief).

John S. Fetten argued the cause for respondent David Michael Motor Car Corporation d/b/a David Michael Volkswagen of Freehold (Pollock, Montgomery & Chapin, attorneys; Mr. Fetten, of counsel and on the brief, Gary Ahladianakis, on the brief).

PER CURIAM

This is a products liability action in which plaintiff alleges that on May 10, 2000, the driver's seat of his 1998 Volkswagen Beetle suddenly and without warning became loose and caused him to sustain injuries. Plaintiff filed a complaint on May 10, 2002, naming as defendants Volkswagen Corp., AG, Volkswagen of America, Inc. (collectively Volkswagen of America), David Michael Motor Car Corporation d/b/a David Michael Volkswagen of Freehold (David Michael Volkswagen).

This appeal seeks the reversal of two orders entered on October 8, 2004. The first order dismissed the complaint against defendant, David Michael Volkswagen, with prejudice pursuant to R. 4:23-5(a)(2). The second order vacated an order entered on July 23, 2004, reinstating plaintiff's complaint against defendant, Volkswagen of America, which had been administratively dismissed June 26, 2004, pursuant to R. 1:13-7. The October 8, 2004, order also simultaneously dismissed the complaint against Volkswagen of America and any "Volkswagen entity" with prejudice.

Plaintiff contends the motion judge erred in granting the motions because plaintiff served fully responsive answers in court on September 24, 2004, during the initial oral argument. Having done so, plaintiff maintains there was no requirement to meet the exceptional circumstances standard set forth under R. 4:23-5(a)(2). Plaintiff argues the motion judge should have granted his cross-motion to reinstate the complaint.

We have examined the record and the briefs in light of applicable law, and we are satisfied that plaintiff's contentions are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E). The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We therefore affirm, adding only this brief comment.

We agree with plaintiff's argument that he need not demonstrate exceptional circumstances where fully responsive discovery has been provided. R. 4:23-5(a)(2); Adedoyin v. ARC of Morris County, 325 N.J. Super. 173, 182 (App. Div. 1999). We have, however, previously recognized that "what the answering party in good faith may regard as responsive under the circumstances is not necessarily congruent with the propounder's view of the matter." Zimmerman v. United Services Auto. Ass'n, 260 N.J. Super. 368, 377 (App. Div. 1992). As Judge Pressler noted in Zimmerman:

There is a broad area for bona fide dispute between answers which are patently inadequate and a set of answers which fully meets the propounder's expectations. We are also satisfied that 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). And if the real contour of the dispute is defendant's request for more specific answers, then the judicial obligation is to adjudicate that dispute, not to dismiss the action with prejudice.

What we are dealing with is, in the end, a question of appropriate remedy. If the set of answers as a whole lies within the area of bona fide dispute as to adequacy, both parties have adequate recourse for testing both the propriety of specific questions and the adequacy of specific answers.

[Ibid.]

The record before the motion judge presented no bona fide dispute as to plaintiff's response to the discovery demands. Therefore, in order to defeat the motion, plaintiff was required to demonstrate exceptional circumstances. R. 4:23-5(a)(2). In our view, plaintiff failed to meet that standard.

On June 14, 2004, plaintiff filed a Notice of Motion to Reinstate the Complaint. In support of the motion, plaintiff's counsel submitted a certification in which he stated that he was unaware that an employee previously assigned to handle plaintiff's file had a serious drug problem. The certification further indicated that after the employee was terminated, a diligent search and review of all of the files handled by that individual revealed that plaintiff's complaint had been dismissed.

At the initial hearing on September 24, 2004, the attorney who appeared on behalf of plaintiff argued that the substance abuse problem of the employee constituted exceptional circumstances sufficient to defeat a dismissal with prejudice pursuant to R. 4:23-5(a)(1). Defense counsel, on behalf of defendant, David Michael Volkswagen, advised the court that plaintiff's designated trial counsel had told him about this particular employee's problem as far back as January 2004. The June 14, 2004, certification provided no specific information as to when the problem with the employee was first discovered. Nevertheless, it seems clear that at the very latest, plaintiff's counsel was aware of the dismissal without prejudice by June 14, 2004, more than three months before the return date of the motion.

Additionally, in a letter dated July 2, 2004, defense counsel advised plaintiff's counsel that the answers to interrogatories were "woefully deficient." The letter further stated, "there is no response to standard Form A interrogatories, A(2) interrogatories as demanded in the complaint. The Notice to Produce propounded March 17, 2004 has not been answered." Plaintiff's counsel did not respond to this correspondence. Moreover, the motion to dismiss with prejudice remained unopposed until oral argument on September 24, 2004. At best, the record before the motion judge established that plaintiff's counsel experienced administrative problems within his office during some unspecified time period. We have previously held that an attorney's internal administrative problems are not considered exceptional circumstances for purposes of defeating a motion to dismiss with prejudice. Rodriguez v. Luciano, 277 N.J. Super. 109, 112-13 (App. Div. 1994).

Affirmed.

 

The motion to dismiss the complaint pursuant to R. 4:23-5(a)(2) was originally returnable September 24, 2004. At oral argument on that date, the court learned that plaintiff had not been notified of the hearing as required and carried the motion for two weeks. The court also granted Volkswagen of America leave to file a notice of motion on short notice to vacate the order of July 23, 2004. Plaintiff filed a cross-motion on September 30, 2004, returnable October 8, 2004, seeking reinstatement of plaintiff's complaint against defendants. The certification submitted in support of the motion dealt only with the issue of outstanding discovery and made no reference to defendant, Volkswagen of America's motion to vacate the order entered July 23, 2004, vacating the June 26, 2004, dismissal. At oral argument on October 8, 2004, plaintiff's counsel acknowledged that Volkswagen of America had been dismissed without prejudice for failure to prosecute. While this appeal also seeks reinstatement of the complaint as to Volkswagen of America, it does not address that portion of the October 8, 2004, order reinstating the June 26, 2004, administrative dismissal.

Defense counsel disputed receiving this Notice of Motion, which was returnable July 9, 2004, as well as the subsequent order granting the relief. Counsel who appeared on behalf of plaintiff on September 24, 2004, was not the attorney who filed the motion to reinstate the complaint. She was not prepared to represent to the court that the Notice of Motion and subsequent order had in fact been served on defense counsel.

(continued)

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A-1475-04T3

November 16, 2005