MICHAEL WHRITENOUR v. TOWNSHIP OF VERNON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4772-06T14772-06T1

MICHAEL WHRITENOUR and

CELESTE WHRITENOUR,

Plaintiffs-Appellants,

v.

TOWNSHIP OF VERNON, POLICE

DEPARTMENT OF THE TOWNSHIP

OF VERNON, CHIEF KENNETH

JOHNSON, and CHIEF ROY

WHERRY,

Defendants-Respondents,

and

KENNETH KUZICKI, PATROLMAN KEITH

KIMKOWSKI, SERGEANT ROBERT WALSH,

PATROLMAN MICHAEL BURNS, PATROLMAN

WILLIAM FISHER, and PATROLMAN SCOTT

WALLECK,

Defendants.

________________________________________

 

Argued May 7, 2008 - Decided

Before Judges Sapp-Peterson, Messano and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0124-02.

Edward P. D'Alessio argued the cause for appellants (Winne, Banta, Hetherington, Basralian & Kahn, attorneys; Mr. D'Alessio, of counsel and on the brief; Rita R. Mungioli, on the brief).

Francis V. Cook argued the cause for respondents (Fox Rothschild, attorneys; Mr. Cook, of counsel and on the brief; Luke P. Wright, on the brief).

PER CURIAM

Plaintiffs, Michael and Celeste Whritenour, appeal from the February 16, 2007 order dismissing their complaint, with prejudice, against defendants, Township of Vernon, Police Department of the Township of Vernon (Department), Chief Kenneth Johnson, and Chief Roy Wherry. We reverse.

On February 27, 2002, plaintiffs filed a complaint in Superior Court alleging numerous employment-related claims against defendants, including harassment, interference with prospective business advantage and loss of consortium. Defendants propounded discovery demands upon plaintiffs between August 2002 and May 2004. On October 5, 2002, the court dismissed plaintiffs' complaint, without prejudice, against defendants, Patrolman Michael Burns, Patrolman William Fisher, Patrolman Keith Kimkowski, Kenneth Kuzicki, Patrolman Scott Walleck, Sergeant Robert Walsh, and the Department, for lack of prosecution. Plaintiffs have never sought reinstatement of their claims against these defendants.

On May 11, 2004, defendants moved to dismiss plaintiffs' complaint without prejudice until plaintiffs satisfied outstanding discovery demands. The motion was returnable June 1, 2004, and was granted as unopposed. The order dismissing the complaint was without prejudice and provided that (1) plaintiffs were to fully answer defendants' first set of interrogatories and respond to document requests by June 14, 2004; (2) plaintiff Michael Whritenour was to appear for the taking of his deposition on June 22, 2004; and (3) plaintiff Celeste Whritenour was to appear for the taking of her deposition on June 23, 2004. The order provided further that if plaintiffs failed to comply with the order, defendants would be permitted to file a motion to dismiss the complaint with prejudice.

On June 23, 2004, defendants filed a motion to dismiss plaintiffs' complaint with prejudice for non-compliance with the June 1 order. Plaintiffs opposed the motion, and their attorney's certification in opposition to the motion advised the court that completion of discovery was hampered by plaintiffs' adversarial divorce proceedings and their retention of new counsel but that the interrogatory responses and over 1,800 pages of responsive documents had been served upon defendants on July 1, 2004. Additionally, plaintiffs' counsel's certification indicated that defendants were invited "to confer with us to establish a date when they can inspect the balance of our documents now available."

In a letter also dated July 1, 2004 that accompanied plaintiffs' discovery responses, plaintiffs' counsel requested that defendants "[p]rovide us with dates during the month of July for the depositions of the plaintiffs. New counsel is entering the case for plaintiffs. He will coordinate with you directly after the Court rules on defendants' motion to dismiss plaintiffs' complaint with prejudice." On August 2, 2004, defense counsel forwarded a letter to the court advising that "[d]efendants hereby withdraw their pending Motion to Dismiss the Complaint with prejudice, presently returnable on Friday August 6, 2004."

More than two years later, on November 27, 2006, defendants moved to dismiss plaintiffs' complaint with prejudice. In the certification in support of the motion, defense counsel stated:

8. Despite this Court's June 1, 2004 Order compelling plaintiffs to fully answer Defendants' First Set of Interrogatories and fully respond to Defendants['] Document Demands by June 14, 2001, plaintiffs wholly and inexplicably failed to do so.

9. Likewise, plaintiffs wholly and inexplicably failed to appear for their Court Ordered depositions, which were to take place on June 22, 2004 and on June 23, 2004, respectively.

Plaintiffs opposed the motion and their attorney submitted a certification stating: (1) defendants had withdrawn the earlier motion; (2) defendants did not make a good faith attempt to resolve the outstanding discovery issues; and (3) the delay in completing discovery was "eclipsed" by plaintiffs' adversarial divorce proceedings as well as the fact that the "transfer of the matter to another law firm was inhibited by the outstanding June 1, 2004 Order of dismissal without prejudice." How the June 1 order inhibited the transfer of the case to another law firm was not explained in the certification.

On the original return date of the motion, January 19, 2007, after hearing some argument, the court adjourned the matter for two weeks to permit counsel an opportunity to submit supplemental papers "as to where these individually named defendants were . . . . If they're not around it's going to be hard for you to defend the police department." On the next return date, following oral argument, the court dismissed the complaint, reasoning that the two-year delay in reinstating the complaint prejudiced defendants. Plaintiffs moved for reconsideration, which the court denied. The present appeal followed.

On appeal, plaintiffs claim the court abused its discretion when it granted defendants' motion to dismiss the complaint with prejudice because defendants failed to demonstrate that they were prejudiced by plaintiffs' delay in pursuing their claims, the court failed to consider remedies other than the ultimate relief of dismissal with prejudice, and the court refused to grant plaintiff relief under Rule 4:50-1.

We first observe that although defendants did not initially raise prejudice as a basis for granting its motion, the supplemental certification of defense counsel submitted after the January 19 hearing raised the issue of prejudice, presumably in response to plaintiffs' contention, during oral argument, that defendants had suffered no prejudice. Thus, when oral argument continued on February 16, 2007, the issue of prejudice to defendants occasioned by plaintiffs' two-year period of inaction was fully before the court.

Our review of a trial court's ruling dismissing a complaint with prejudice is limited to determining whether the court abused its discretion. Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 517. We will "decline [ ] to interfere with [such] matters of discretion unless it appears that an injustice has been done." Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 23 (App. Div. 2007) (citing Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 517 (App. Div. 1983), certif. denied, 97 N.J. 581 (1984).

Against this standard of review, we first observe that the dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked unless no lesser sanction will suffice to erase the prejudice of the non-delinquent party. Zaccardi v. Becker, 88 N.J. 245, 253 (1982). In other words, dismissal with prejudice is the ultimate sanction amongst a range of sanctions available to trial courts when a party has violated a court order. Ibid. Consequently, if a lesser sanction can erase the prejudice against the non-delinquent party, dismissal of the complaint with prejudice would not be appropriate and would therefore constitute an abuse of discretion. Johnson v. Mountainside Hospital, Respiratory Disease Associates, P.A., 199 N.J. Super. 114, 120 (App. Div. 1985), certif. denied, 122 N.J. 188 (1990).

Here, when the court initially dismissed plaintiffs' complaint with prejudice, the court pointed to no particular rule as a basis for its action. Rather, the court focused upon its conclusion that plaintiffs allowed "two and a half years to go by without reinstating the complaint" and the resulting prejudice to defendant, which the court apparently concluded could be presumed because "we're asking people to remember details of things that occurred 11 and a half years ago. That's prejudice. Whether the defendant has argued it or not, that to me is clearly prejudiced [sic] because people's memories lose their force in a matter of days and months." In the subsequent hearing on plaintiffs' motion for reconsideration, the court clarified that it dismissed plaintiffs' complaint with prejudice pursuant to "[Rule] 4:37-2, failure to follow court rule." The court did not identify, at least by rule number, the particular rule it found plaintiff to have violated. However, the court stated, "[i]n this case, it's the court rule requiring that there be a motion to reinstate. And the court rule talks about 90 days."

Rule 4:37-2 addresses involuntary dismissal for, among other reasons, failure to comply with "any order of the court." This rule has no ninety-day reinstatement requirement. Plaintiffs disputed defendants' claim that they failed to comply with the June 1 order, pointing to the withdrawal of defendants' June 23, 2004 motion to dismiss with prejudice. The court apparently agreed, stating, "I think the plaintiff[s] [are] probably correct, that by the summer of 2004 they had provided discovery, and a motion to dismiss with prejudice that at least had been filed by the defendant was withdrawn." Nonetheless, the court focused upon the prejudice to defendants occasioned by plaintiffs' two-year period of inaction in pursuing their claims, including their failure to seek reinstatement of the complaint.

We are satisfied that under Rule 4:23-2(b)(3), dismissal of a complaint with prejudice for non-compliance with a court order and for failure to attend a party's own deposition pursuant to Rule 4:23-4 is an appropriate sanction where the court is satisfied that a party's conduct has been "egregious," "willful" and "deliberate." Abtrax, supra, 139 N.J. 499 (1995). Likewise, a dismissal with prejudice pursuant to Rule 4:37-2 is equally appropriate and may be invoked by the court sua sponte provided the court is satisfied that a litigant has been prejudiced by a party's failure to comply with any court order. Johnson v. Mountainside Hosp., Respiratory Disease Associates, 199 N.J. Super. 114, 120 (App. Div. 1985); Abtrax, supra, 139 N.J. at 521.

Beyond the fact that more than two years had elapsed since the court dismissed plaintiffs' complaint without prejudice and more than ten years had passed since the allegedly tortious conduct occurred, the court made no other findings. The court concluded that there was prejudice solely because of the passage of time. Plaintiffs' counsel, in the supplemental submissions requested by the court following the January 19, 2007 hearing, certified that with the exception of one defendant, all of the remaining defendants were still employed by the Department, and the one defendant who was retired remained available. Thus, in dismissing the complaint with prejudice, the court essentially made a per se determination that the two-year period of inaction on plaintiffs' part to pursue their claims, along with the fact that the alleged events had occurred years ago, presumptively established prejudice to the defendants.

In our view, the record before the court was not sufficiently informative to support such a conclusion. The record does not reveal the nature and extent of the prejudice each of the defendants allegedly sustained as a result of plaintiffs' failure to seek reinstatement of the complaint. Therefore, we are constrained to reverse.

Reversed.

 

Rule 4:23-5, Failure to Make Discovery, includes a provision for the imposition of monetary sanctions where reinstatement of a complaint dismissed under that rule occurs more than ninety days following dismissal. However, the June 1, 2004 dismissal was not pursuant to Rule 4:23-5.

During argument before us, defense counsel indicated that the withdrawal of the June 23, 2004 motion to dismiss was to accommodate plaintiffs' representation that new counsel was being retained. We note from the record that plaintiffs' counsel argued on January 19, February 16, and April 27, 2007, that defendants had withdrawn their June 23, 2004 motion to dismiss. Defense counsel at no time advised the trial court that the withdrawal was an accommodation to plaintiffs while they retained new counsel.

(continued)

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11

A-4772-06T1

July 9, 2008