DEVIN V. PERDUE POMPTON CARE, LLC, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0949-06T10949-06T1

DEVIN V. PERDUE,

Plaintiff-Appellant,

v.

POMPTON CARE, LLC d/b/a

ARBOR GLEN REHABILITATION CENTER,

and CHRISTINE BERTHA,

Defendants-Respondents.

_____________________________________

 

Submitted June 20, 2007 - Decided July 17, 2007-

Before Judges Wefing and Weissbard.

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

ESX-L-3526-05.

Panitch & Rachinsky, attorneys for appellant (Richard S. Panitch, of counsel and on the brief; John J. Rachinsky, on the brief).

Day Pitney and Kraig B. Long (Shawe & Rosenthal) of the Maryland bar, admitted pro hac vice, attorneys for respondent Pompton Care LLC (Mr. Long, on the brief).

PER CURIAM

Plaintiff, Devin V. Perdue, appeals from the dismissal of his complaint against defendant Pompton Care, LLC d/b/a Arbor Glen Rehabilitation Center, primarily alleging violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We affirm.

The relevant history is largely procedural. Plaintiff filed suit on April 29, 2005. His complaint asserted LAD claims based on race discrimination/hostile work environment, unlawful retaliation, and aiding and abetting liability, as well as causes of action for intentional and/or negligent infliction of emotional distress. On November 29, 2005, defendants moved, pursuant to R. 4:23-5(a)(1), for dismissal without prejudice based on plaintiff's failure to respond to discovery requests. The motion was supported by a certification of defendant's attorney, as follows:

4. By Order dated June 27, 2005, this matter was referred to mediation, and Jenny A. Puchta was appointed as the mediator.

5. On July 6, 2005, Mediator Puchta contacted the Parties and arranged for an organizational telephonic conference for July 13, 2005.

6. Due to a scheduling conflict, the telephonic conference was rescheduled for July 15, 2005 at 11 a.m.

7. on July 15, 2005, Counsel for the Parties participated in the telephonic conference, during which the Parties agreed to pursue abbreviated discovery, including a mutual exchange of requests for the production of documents and the deposition of the Plaintiff. The Parties further agreed that they would complete this abbreviated discovery on or about September 15, 2005, and tentatively scheduled Plaintiff's deposition for September 15, 2005. Counsel for Plaintiff represented during the call that he was departing for vacation in August, but that if Defendant served his client with a request for the production of documents within the next couple of weeks, he would respond to the requests before he departed for his vacation. Mediator Puchta scheduled the initial mediation session for September 29, 2005. Mediator Puchta faxed the Parties a letter dated August 2, 2005 memorializing the foregoing schedule. A copy of the Mediator's August 2, 2005 letter is attached hereto as Exhibit A.

8. On July 15, 2005, following the telephonic conference, Defendant served Plaintiff by facsimile with a letter requesting the production of documents. Defendant requested that Plaintiff produce responsive documents before counsel departed for his August vacation, so that Defendant would have sufficient time to review the documents before Plaintiff's deposition, which was tentatively scheduled for September 15, 2005. Defendant confirmed its availability for the Plaintiff's deposition on September 15, 2005, and sought Plaintiff availability for this date. A copy of Defendant's July 15, 2005 letter requesting the production of documents is attached hereto as Exhibit B.

9. On August 23, 2005, Defendant served Plaintiff with a copy of the Order admitting Messrs. McGuire and Long pro hac vice. In the cover letter submitted with the Order, counsel for Defendant indicated that they had not heard back from Plaintiff regarding the document requests contained in their

July 15 letter or Plaintiff's availability for deposition on September 15, 2005. Counsel for Defendant once again requested that Plaintiff provide a response to Defendant's document requests as soon as possible, but no later than September 1, 2005. A copy of Defendant's August 23, 2005 letter is attached hereto as Exhibit C.

10. Having not heard from Plaintiff, on August 25, 2005, counsel for Defendant called counsel for Plaintiff at his

office but got no answer. Counsel for Defendant, however, left a voice mail message for Plaintiff's counsel asking him to call as soon as he received the message to discuss the outstanding discovery and deposition date.

11. On August 29, 2005, having still not heard from Plaintiff, counsel for Defendant called counsel for Plaintiff at his office and was told the he was out of the office on vacation until September 6, 2005. Counsel for Defendant, however, left a voice mail message for Plaintiff's counsel asking him to call as soon as he received the message to discuss the outstanding discovery and deposition date.

12. With Plaintiff's deposition tentatively scheduled for September 15, 2005 and having received (a) no communications from Plaintiff since July 15, (b) no response to Defendant's outstanding discovery, and (c) no response to Defendant's phone calls and letter, Defendant sent a letter dated September 1, 2005 to Mediator Puchta advising her of Plaintiff's failure to respond. Defendant also requested that the September 29, 2005 mediation session be adjourned until - per the July 15 agreement - Plaintiff had responded to the outstanding discovery and Defendant had adequate time to prepare and take Plaintiff's deposition. A copy of Defendant's September 2005 letter is attached hereto as Exhibit D.

13. On September 8, 2005, Mediator Puchta called and spoke with counsel for Defendant in response to their September 1 letter. Mediator Puchta advised counsel that she was adjourning the September 29 mediation session and that she was going to request that the Court extend mediation for an additional 90 days. Mediator Puchta further advised counsel that she unsuccessfully tried to reach counsel for Plaintiff by telephone on September 8, but left a message for him requesting his timely cooperation in responding to the outstanding discovery and providing his client's availability for deposition. Mediator Puchta also requested that Plaintiff serve Defendant with his discovery requests, as the Parties also had agreed during the July 15 telephonic conference. Mediator Puchta sent Defendant a facsimile memorializing her response to Defendant's September 1 letter and the September 8 telephone call. A copy of Mediator Puchta's September 8, 2005 facsimile is attached hereto as Exhibit E.

14. On September 19, 2005, counsel for Defendant faxed Mediator Puchta a letter advising her that since her September 8 letter, Plaintiff's counsel still had not contacted Defendant, and still had not responded to any of the outstanding discovery, nor provided Defendant with any discovery of his own. Counsel further advised Mediator Puchta that Defendant was considering seeking judicial intervention to resolve these issues. A copy of Defendant's September 19, 2005 letter is attached hereto as Exhibit F.

15. On September 28, 2005, counsel for Plaintiff finally called and spoke with counsel for Defendant, and indicated that he was working on his responses to Defendant's outstanding discovery and asked that he be given an additional week or two to respond and schedule the deposition of his client. Counsel for Defendant informed Plaintiff's counsel that they would take his request under advisement and respond shortly.

16. On October 5, 2005, counsel for Defendant faxed Plaintiff a letter agreeing to give him until October 15 to provide Defendant with his responses to the outstanding discovery. Defendant informed Plaintiff that if it did not receive a response to its discovery requests by October 15, 2005, Defendant would file an appropriate motion with the Court without any further attempts to resolve the issue. A copy of Defendant's October 5, 2005 letter is attached hereto as Exhibit G.

17. On October 15, 2005, Plaintiff's counsel called counsel for Defendant and advised that he would be serving his outstanding responses within a day or two.

18. Since October 15, 2005, Defendant has not received any response to its outstanding discovery or received a request for available dates for plaintiff's deposition. Despite Defendant's repeated attempts to get Plaintiff to comply with his discovery obligations without Court intervention, such attempts have proved unsuccessful.

19. Defendant is not in default on any discovery obligation owed to Plaintiff.

The motion was unopposed and was granted on December 16, 2005. On March 16, 2005, defendants moved for dismissal with prejudice pursuant to R. 4:23-5(a)(2), and for counsel fees and costs. Plaintiff cross-moved to reinstate his complaint, certifying as follows:

2. The complaint in this matter was dismissed without prejudice for failure to comply with discovery.

3. Mr. Richard S. Panitch of this office was of the opinion that the requested documents had been provided when he learned that the requested material was not delivered to defendants he assigned the task to Ms. Joanna Lehder, counsel to this office. Ms. Lehder had an emergency appendectomy and apparently the materials weren't supplied to defendant.

4. Plaintiff has now provided answers to Defendant's request for documents.

I, John J. Rachinsky, Esquire, personally hand delivered the outstanding documents to defense counsel's office on Friday, April 7, 2006 with a letter requesting that she withdraw her motion. (See attached.)

5. Accordingly, I respectfully request that given the fact that the plaintiff has fully complied with his Discovery obligations, that the Order dismissing the Complaint be vacated, and our firm's check in the sum of $100.00 be accepted to reinstate the Complaint.

[Exhibits omitted.]

The judge granted plaintiff's motion and denied that of defendant.

On May 1, 2006, the judge entered an order embodying a case management plan agreed to by the parties. The order required completion of plaintiff's deposition by May 31, 2006, with defendant directed to produce a copy of plaintiff's personnel file by that date, mediation (previously adjourned) to be held in June 2006, subject to the mediator's availability, and completion of all discovery by August 31, 2006.

Defendant produced plaintiff's personnel file on May 18, 2006. Plaintiff, however, did not agree to appear for deposition until June 13, 2006. He did not appear on that date and on June 23, 2006, defendant moved to dismiss pursuant to R. 4:23-2(b)(3) and R. 4:23-4. Defendant's counsel certified as follows:

18. Consistent with the Case Management Order, Defendant offered Plaintiff five different possible dates for Plaintiff's deposition: May 16, 22, 23, 24 and 25. Plaintiff's counsel agreed to confer with his client regarding his availability, and provide Defendant with a response as soon as possible.

19. On May 8, 2006, counsel for Defendant served Plaintiff with a copy of the May 1 Case Management Order.

20. In the cover letter accompanying the Order, counsel for Defendant reminded Plaintiff's counsel that they had not heard back from him regarding Plaintiff's availability for deposition on the dates provided. A copy of that letter is attached hereto as Exhibit C. The letter also advised counsel for Plaintiff that Mr. Long of Shawe Rosenthal LLP in Baltimore, Maryland would be taking Plaintiff's deposition, that he was no longer available on May 16, but that the remaining dates were still available.

21. By May 17, 2006, Plaintiff still had not responded to Defendant regarding his availability for deposition. Given that the proposed deposition dates were the following week, I sent counsel for Plaintiff a letter that same day requesting that he contact me no later than close of business the next day. A copy of that letter is attached hereto as Exhibit D.

22. On May 18, 2006, pursuant to the case management order, Defendant served Plaintiff with a copy of Plaintiff's personnel file. Plaintiff, however, still had not responded to Defendant regarding his deposition.

23. On May 19, 2006, the office of counsel for Plaintiff called and informed me that Plaintiff would be available for deposition on May 24, 2006.

24. Counsel for Plaintiff followed up his call with a letter, confirming their and Plaintiff's availability for deposition on May 24, as well as three dates in June: June 9, 12, and 13. A copy of that letter is attached hereto as Exhibit E.

25. In light of the May 31 deadline for Plaintiff's deposition in the Case Management Order, counsel for Defendant

called Plaintiff's counsel and agreed to depose Plaintiff on May 24.

26. However, later that day, counsel for Plaintiff advised me that he was no longer available on May 24, and offered alternate dates of June 9, 12, and 13.

27. Defendant's counsel advised Plaintiff's counsel that June 13, 2006 was acceptable, but because the dates offered by Plaintiff were beyond the May 31 deadline set forth in the Case Management Order for Plaintiff's deposition, Plaintiff must contact the Court and request an appropriate extension of the deadline.

28. On May 22, 2006, Defendant formally noticed Plaintiff's deposition for the agreed-upon date, and accompanied the notice with a letter memorializing the parties' discussions on May 19. A copy of that letter is attached hereto as Exhibit F.

29. Counsel for Plaintiff never contacted the Court to request an appropriate extension of the deposition deadline as he had agreed to during the May 19 telephone call.

30. As such, on May 26, 2006, I submitted a letter to the Court advising it that the parties intended to proceed with Plaintiff's deposition on June 13. A copy of that letter is attached hereto as Exhibit G.

31. Early in the day on June 12, 2006, I faxed Plaintiff's counsel a letter reminding him of Plaintiff's deposition that was scheduled to take place at the law offices of Pitney Hardin LLP in Florham Park on June 13, 2006 beginning at 10 a.m. A copy of that letter is attached hereto as Exhibit H.

32. In anticipation of the deposition, Mr. Long traveled to Florham Park from Baltimore, Maryland on June 12, 2006, and spent the night at a hotel near the deposition site. At 10 p.m. the night before the deposition, counsel for Plaintiff called and left a voice mail message at my office advising that he and his client could not appear for his deposition the next day because of some unspecified transportation issues. I did not receive the voice mail message until the next day, shortly before the scheduled start of the deposition.

33. By the time plaintiff's cancellation message was received, Mr. Long had arrived at the offices of Pitney Hardin prepared to take Plaintiff's deposition. I informed Mr. Long of the voice mail message from Plaintiff's counsel.

34. By this time, the court reporter had already arrived and set up her equipment. At 9:57 a.m., counsel for Defendant put a statement on the record confirming Plaintiff's failure to attend his deposition.

[Exhibits omitted.]

On July 21, 2006, the judge entered an order dismissing the complaint with prejudice. The order indicated that the motion was unopposed. The order was apparently received by counsel on July 28, 2006. On that same date, plaintiff's counsel authored a certification in opposition to defendant's motion, which read, in part, as follows:

3. With regard to the deposition of my client, Ms. Feher and I selected June 13, 2006 as the date for the plaintiff to be deposed. I sent a letter to my client advising my client of the date. A copy of that letter is attached hereto as Exhibit A. In that letter, I advised my client to call me the day before to confirm the deposition. My client did in fact call me the day before the deposition when I was out of the office and I assumed that my client was calling me simply to confirm whether or not the deposition was still on. My office advised the adversary that we would be proceeding the next day. I was fully prepared to attend the deposition.

4. Since I was out of the office most of the day on June 12, 2006, I asked my partner, John J. Rachinsky, Esquire, to make sure he followed-up with Mr. Perdue and to answer any questions about the deposition and to let Mr. Perdue know that I would be calling him later just to go over the deposition format and to remind him again as to what to expect at the deposition. Thereafter, my partner advised me that he had spoken to Mr. Perdue and that Mr. Perdue advised him that he had never received my letter and that he had just called that day to discuss the status of his case. Mr. Perdue advised Mr. Rachinsky that he could not get transportation to the deposition.

5. Thereafter, upon being advised of this fact by Mr. Rachinsky, I contacted the client myself and spoke at length to both Mr. Perdue and his Mother. I advised him about the deposition date and the fact that it was very important for us to complete his deposition. Both Mr. Perdue and his Mother said there was no way that he could be at the deposition the following day.

6. I immediately placed a call to Ms. Feher to advise her that my client was having transportation issues. Since it was after normal business hours, I stated I would follow-up with her the next day in order to re-schedule the deposition. I called Ms. Feher's office a number of times the following day without a return phone call. Thereafter, I phoned defense counsel's office on numerous occasions both to apologize about my client not being present on the date and to schedule a new deposition date. My calls went unreturned.

7. I ultimately was able to speak with Ms. Feher and she told me that her client would not schedule a new deposition date and that they would be filing a Motion. Upon hearing this, I immediately contacted Your Honor's Law Clerk to advise Your Honor that we were trying to comply with discovery demands and in fact wanted to produce our client for a deposition.

Specifically, before this Motion was even filed, I asked the Court to convene a Case Management Conference so that we could deal with the issues that were presented.

8. Ms. Feher points out a number of frustrations that she had with regards to discovery in this matter. In large part, these frustrations stems from aberrational circumstances that occurred at the same time. First, our entire computer system crashed and our documents were inaccessible for close to a month. In addition, our secretary at the time was out for an extended period of time due to a prolonged illness. This placed an enormous strain on our office in terms of completing depositions and getting required work performed. There was no disrespect intended to defendants' counsel or to the Court as to the specific incident which triggered this Motion (the failure to appear at a deposition). Moreover, I diligently attempted to schedule the deposition after I heard from my client that he could not appear on that date.

9. I am convinced that my client is sincere in his desire to pursue his case and respectfully request the Court allow my client to have his day in Court. We will comply stringently with Your Honor's Order and advise our client in no uncertain terms, that he must comply with whatever discovery order Your Honor imposes or his case will be dismissed. In all fairness to our client, he had no advance warning that by not appearing at his deposition for transportation issues that his case could potentially be dismissed for all time.

10. We appreciate the courtesies the Court has extended to our firm previously and we apologize profusely to Your Honor for the mishap with regard to the Case Management Conference. Certainly, our office not appearing on that date was due to no disrespect to Your Honor and was only a result of a catastrophic computer occurrence at our office.

11. Moreover, we are willing to pay reasonable costs with regard to my client not appearing at the deposition. We certainly recognize that reasonable counsel fees should be allowed to the defendants in connection with our client not being able to arrange transportation after the deposition had been confirmed. We respectfully suggest that sanctions short of dismissing the case with prejudice are much more appropriate. We do respectfully request that the Court in the alternative enter a stringent Case Management Order as well as award reasonable Costs to defendants for our client's failure to appear at the deposition. See Conrad v. Robbie, 341 N.J. Super. 424, 441 (App. Div.), cert. denied, 170 N.J. 210 (2001). (It has long been held that the Court should be loathe to impose the ultimate sanction of dismissal with prejudice.)

12. For all the foregoing reasons, we respectfully request that the Defendants' Motion be denied and that in the alternative the Court impose a stringent Case Management Order upon the plaintiff as well as impose reasonable counsel fees in connection with the plaintiff's non-appearance at a deposition.

[Exhibits omitted.]

On August 10, 2006, plaintiff moved for reconsideration of the order of dismissal, certifying as follows:

2. A Case Management Conference was conducted in this case on July 12, 2006. At that time Defendants' Motion to Dismiss was returnable on Friday, July 21, 2006. I asked counsel for the defense if she would consent to carry the Motion until August 4, 2006 as my partner was on vacation, who was primarily responsible for the handling of this matter. Counsel agreed and Judge DeSoto entered an Order that the Motion to Dismiss with Prejudice was pending and returnable on August 4, 2006. See

Exhibit A. On July 27, 2006 my partner, Mr. Richard Panitch, filed via hand-delivery a Certification in Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint with Prejudice. See Exhibit B.

3. On July 28, 2006 this office received from defense counsel a copy of an Order dismissing plaintiff's Complaint with prejudice, entered by Judge Desoto on July 21, 2006. See Exhibit C.

4. Assuming this may have been an oversight I personally appeared in the Courtroom of Judge DeSoto pursuant to the Judge's Case Management Order of July 12, 2006 on the Motion day, August 4, 2006 and learned that the Motion was not listed.

5. It appears that the original return-date for the Motion was not changed in light of Judge DeSoto's Case Management Order scheduling the Motion for August 4, 2006.

6. It is respectfully submitted that the plaintiff always intended to oppose the Defendants' Notice of Motion to Dismiss the Complaint with Prejudice as evidenced by the Certification hand-delivered on July 27, 2006. However, plaintiff was denied this opportunity due to an apparent scheduling error.

7. Therefore, it is respectfully requested that Your Honor reconsider the Order and consider the merits and legal arguments set forth in Plaintiff's Certification in

Opposition to Defendants' Notice of Motion to Dismiss.

[Exhibits omitted.]

In response, defense counsel agreed that the motion to dismiss had been carried to August 4, 2006, making plaintiff's response due by July 27. As noted, it was not filed until July 28, 2006.

Apparently recognizing that the order of July 21, 2006, had been inadvertently granted before the adjourned return date, Judge DeSoto appropriately granted plaintiff's motion for reconsideration. However, after hearing oral argument on September 5, 2006, the judge reaffirmed the order of dismissal with prejudice, stating "that at some point we have to take a position that Best Practices and discovery end dates and case management orders mean something." As the judge stated earlier in the hearing, the case reflected "a pattern of neglect" by plaintiff. "[T]he level of neglect in this case is

appalling. . . ." The case, he said, is a "poster child for why [the Best Practices deadlines] were established."

Plaintiff argues that dismissal with prejudice was too harsh a sanction for his discovery violations. Our standard of review is highly deferential. We generally will not interfere in the trial court's ruling on discovery matters unless there is an abuse of discretion. Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 559 (1997). See also Calabrese v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div. 1978), aff'd, 82 N.J. 321 (1980). Having reviewed the record, we discern no injustice in the judge's action. See Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1998).

 
Plaintiff had every opportunity to comply with the rules but failed to do so. Even after his complaint was once dismissed and then reinstated, his dilatory conduct continued. As the judge said, there comes a point where the Rules must be enforced or they become no more than meaningless, precatory guidelines. We are mindful that dismissal with prejudice is the ultimate sanction and should not be lightly invoked. Gonzalez v. Safe and Sound Sec. Corp., 185 N.J. 100, 115-16 (2005); Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 517 (1995); Il Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004). Here, the judge was fully familiar with the history of the litigation and had made every reasonable effort to keep plaintiff's case afloat. Ultimately, his efforts were spurned. We find no abuse of discretion in his conclusion to that effect. See Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 518 (App. Div. 1983), certif. denied, 97 N.J. 581 (1984).

Affirmed.

(continued)

(continued)

17

A-0949-06T1

July 17, 2007