YOHANNES KASSA v. LESLIE D. JOHNSON CLINICAL TESTING AND RESEARCH, INC DNA FORENSIC CONSULTANTS, LLC -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0477-10T3

YOHANNES KASSA,

Plaintiff-Appellant,

and

SIMRET TESFAYE MOGES,

Plaintiff,

v.

LESLIED. JOHNSON,CLINICAL TESTING AND RESEARCH, INC.,DNA FORENSIC CONSULTANTS, LLC,

Defendants-Respondents.

_____________________________

December 6, 2011

Submitted October 25, 2011 - Decided

Before Judges Payne, Reisner and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8886-05.

Yohannes Kassa, appellant pro se.

Wahrenberger & Pietro, LLP, attorneys for respondents (JoAnn Pietro, of counsel; Ms. Pietro and Cyndee L. Allert, on the brief).

PER CURIAM

Plaintiff Yohannes Kassa appeals from four Law Division orders: the December 30, 2009 order, which denied plaintiff's motion to file a third amended complaint; the April 7, 2010 order, which compelled plaintiff to provide outstanding discovery and appear for deposition; the May 6, 2010 order, which dismissed the complaint without prejudice pursuant to Rule 4:23-5(a)(1); and the August 27, 2010 order, which dismissed the complaint with prejudice pursuant to Rule 4:23-5(a)(2). We affirm.

Plaintiff is a native of Ethiopia and a naturalized citizen of the United States. In 2003, plaintiff's purported wife, Simret Tesfaye Moges,1 also native of Ethiopia, applied for an immigrant visa to come to the United States. After Moges's interview at the American Embassy in Ethiopia, the Embassy notified plaintiff that the interviewing officer suspected there was a blood relationship between plaintiff and Moges and suggested DNA testing to rule out relationship fraud. DNA testing under these circumstances is voluntary, not compelled by the United States government, and paid for by the visa applicant.

The Embassy gave plaintiff the names and addresses of two accredited DNA paternity testing facilities, which included defendant Clinical Testing and Research, Inc. (Clinical Testing), located in Ridgewood, New Jersey. In 2003, Clinical Testing was licensed by the State of New York to conduct parental relationship identity testing, licensed by the State of New Jersey as a clinical laboratory, and was certified by the American Association of Blood Banks (AABB) to conduct parentage testing activities. Leslie Johnson, Ph.D., Clinical Testing's owner and director, was certified by New York as a qualified laboratory director. New Jersey did not require Dr. Johnson to have a license to conduct DNA paternity testing.

Plaintiff chose to use Clinical Testing. On July 3, 2003, Dr. Johnson obtained plaintiff's buccal swab. On July 16, 2003, Moges's buccal swab was obtained at the Embassy.

According to the DNA Relationship Testing Procedures published by the United States Department of State,2 the testing facility performing the DNA test must send a report of test results directly to the Embassy. The Embassy then contacts the applicant. Dr. Johnson sent the Embassy a report, dated September 1, 2003, which confirmed that there was a ninety percent probability that plaintiff was Moges's uncle or grandfather. In October 2003, the Embassy notified plaintiff that "[t]here is evidence that you do not, in fact, have a valid marriage." The notice also stated that Moges's visa petition was returned to the United States Department of Homeland Security for revocation, and plaintiff should contact Homeland Security for additional assistance.

The record reveals that although plaintiff had not received a copy of Dr. Johnson's report, he knew by December 2003 that the report stated that he and Moges were blood relatives. In fact, he wrote to Dr. Johnson on December 24, 2003, threatening to file a complaint for "willful and deliberate negligence," fraud, breach of contract, consumer fraud, "and other injuries suffered" resulting from her failure to send him the report. In addition, we discern from the record that in 2003, plaintiff filed a complaint with the New Jersey State Board of Medical Examiners (Board) against Dr. Johnson based on her alleged failure to have a license to conduct DNA paternity testing.

In February 2004, the Embassy advised plaintiff that Moges's petition had been returned to Homeland Security with the recommendation that he be prosecuted for alien smuggling. Thereafter, on December 27, 2005, plaintiff filed a pro se complaint in the Law Division against Dr. Johnson, Clinical Testing, and defendant DNA Forensic Consultants, LLC.3 He subsequently filed a pro se amended complaint on May 12, 2006. The court dismissed both complaints without prejudice pursuant to Rule 4:6-2(e) for failure to state a claim.

On July 7, 2006, plaintiff filed a pro se second amended complaint, alleging the following: Count 1 - breach of a duty of disclosure; Count 2 - breach of informed consent; Count 3 - breach of beneficiaries' rights as decision maker; Count 4 - constructive fraud; Count 5 - breach of the covenant of good faith and fair dealing; Count 6 - willful or wanton misconduct; Count 7 - (omitted); Count 8 - breach of confidentiality; Count 9 - "(Discovery will reveal the legal terms to use for this breach);"4 and Count 10 - breach of fiduciary duties. Plaintiff also alleged medical and/or professional negligence, and intentional infliction of emotional distress. Plaintiff's claims were grounded primarily on Dr. Johnson's failure to send him the report until January 13, 2004.

In a September 18, 2007 order, the court dismissed all counts in the second amended complaint with prejudice, except Count 5, which it dismissed without prejudice pursuant to Rule 4:23-5(a)(1) for plaintiff's failure to provide discovery. Thereafter, the Board notified plaintiff in December 2007, and January 2008, that it found no basis for disciplinary action because Dr. Johnson was not required to have a license to conduct DNA paternity testing.5 The Board also notified plaintiff that it had investigated, but found no reason to discipline Clinical Testing's employee, Edward A. Weiner, M.D., a New Jersey licensed medical physician who also had a New Jersey laboratory director license.

In a February 19, 2008 order, the court dismissed Count 5 of the second amended complaint with prejudice pursuant to Rule 4:23-5(a)(2) because plaintiff failed to answer form interrogatories and gave incomplete answers to supplemental interrogatories. Plaintiff appealed from the September 18, 2007 and February 19, 2008 orders. We affirmed the dismissal with prejudice of Counts 2, 3, 4, 8, 9, and 10. Kassa v. Johnson, No. A-3345-07 (App. Div. June 16, 2009) (slip op. at 12-13). We reversed and remanded as to Counts 1 and 6, which we construed to allege a cause of action for breach of contract due to Dr. Johnson's failure to timely deliver the report or failure to disclose information, and Count 5. Id. at 11. We also restored Counts 11 and 12, which alleged medical or professional malpractice, "subject to defendants' right to seek their dismissal after a Lopez6 hearing or production of additional evidence that the claims have been asserted in an untimely fashion." Id. at 12. We limited discovery to these remaining claims. Ibid.

Plaintiff had previously served a demand for the production of Dr. Johnson's and Clinical Testing's licenses and information relating to Dr. Johnson's analysis of the test results. Following our decision, defendants served interrogatories, a demand for the production of signed authorizations for plaintiff's immigration and Department of Homeland Security files, and a notice for plaintiff to appear for deposition.

In November 2009, plaintiff sought to file a third amended complaint to add Dr. Weiner as a defendant, alleging that he was an owner of Clinical Testing and the only person who held a New Jersey license. Plaintiff also sought to add "new" claims against all defendants for consumer and common law fraud, fraudulent concealment, negligent misrepresentation, negligence, tortious interference with property interests and benefits, violation of the New Jersey Genetic Privacy Act;7 "loss of marital rights or violation of civil rights," loss of consortium, breach of fiduciary duties, and pain and suffering.

In a December 30, 2009 order, the court denied the motion, holding that Dr. Weiner was not involved in plaintiff's DNA testing, was not an owner or director of Clinical Testing, and his medical license was irrelevant. The court also held that the "new" claims plaintiff sought to add were really the same claims that were dismissed with prejudice, and the dismissal was affirmed on appeal. Plaintiff filed a motion for leave to appeal, which we denied. We also denied his motion for reconsideration and for clarification.

Defendants served plaintiff with copies of the licenses and certifications he had requested and provided information on how Dr. Johnson analyzed the test results and the methodology she used for DNA interpretation. On the other hand, by March 2010, plaintiff had not complied with discovery, and twice failed to appear for deposition. As a result, on March 12, 2010, defendants filed a motion to dismiss the complaint without prejudice pursuant to Rule 4:23-5(a)(1). In opposition, plaintiff argued that defendants had not provided discovery.

In an April 7, 2010 order, the court denied defendants' motion without prejudice, and ordered plaintiff to "provide discovery and appear for deposition[] on or before April 21, 2010 or risk having [the] complaint . . . dismissed." The court found that plaintiff did not deny that he failed to provide discovery, defendants had provided all outstanding discovery, and plaintiff had requested documents that did not exist. The court emphasized that although there was "good cause to dismiss the Complaint," it, nonetheless, denied the motion because plaintiff was pro se. However, the court warned plaintiff that it was giving him "one last opportunity to provide the outstanding discovery and appear for deposition[]."

Plaintiff did not comply with the April 7, 2010 order. Instead, on April 21, 2010, he filed an untimely motion for reconsideration of the December 30, 2009 order, and also sought reconsideration of the April 7, 2010 order. Defendants filed a cross-motion to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2) because plaintiff still had not provided discovery, including an expert report and signed authorizations for his immigration and Department of Homeland Security files, and refused to appear for deposition.

The court considered the motion and cross-motion on May 3, 2010, the day of trial.8 At oral argument, the court made clear that it was giving plaintiff one last opportunity to provide the outstanding discovery and appear for deposition, again warned him that his complaint would be dismissed with prejudice if he failed to comply, and advised that he must file a motion to restore the complaint. The court entered an order on May 6, 2010, which dismissed the complaint without prejudice pursuant to Rule 4:23-5(a)(1).

Thereafter, plaintiff provided some of the outstanding discovery, but he failed to serve an expert report and appear for deposition, and did not move to vacate the May 6, 2010 order. As a result, on July 21, 2010, defendants filed a motion to dismiss with prejudice pursuant to Rule 4:23-5(a)(2). Plaintiff improperly filed opposition three days before the return date, claiming that he had provided the outstanding discovery, and was now ready to appear for deposition. He also again argued that defendants failed to comply with discovery.9

In an August 27, 2010 order, the court dismissed the complaint with prejudice pursuant to Rule 4:23-5(a)(2), concluding that plaintiff failed to explain the delay in providing the outstanding discovery, he had received "plenty of opportunities" to provide discovery "which [he] has never previously asserted has already been provided to [d]efendants[,]" and he was warned that his failure to provide discovery and appear for deposition would result in the dismissal of his complaint with prejudice. This appeal followed.

I.

Plaintiff contends that the court abused its discretion in denying his motion to file the third amended complaint. He argues, in part, that because Dr. Johnson was unlicensed, Dr. Weiner "should be the main defendant" because he is the only individual at Clinical Testing who held a medical license.

We review a trial court's grant or denial of a motion to amend a pleading under an abuse of discretion standard. Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J.437, 457 (1998). "'[C]ourts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J.490, 501 (2006) (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997)). A motion to amend is properly denied when the motion's purpose is to re-litigate an issue that the court had already decided. Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super.510, 539-40 (App. Div. 2009), certif. denied, 203 N.J.93 (2010). "So too is a motion to amend properly denied where its merits are marginal, its substance generally irrelevant to the main claim, and allowing the amendment would unduly protract the litigation." Pressler & Verniero, Current N.J. Court Rules, comment 2.2.1 to R.4:9-1 (2011).

Applying these standards, we discern no reason to disturb the denial of plaintiff's motion to file a third amended complaint. First, there was no legal basis to add Dr. Weiner as a defendant. Dr. Weiner was not an owner or director of Clinical Testing, had no involvement in plaintiff's DNA testing, and rendered no services to plaintiff. Further, his medical license was irrelevant to the testing Dr. Johnson performed, and Dr. Johnson was not required to be licensed in New Jersey to conduct DNA testing.

Second, the "new" claims plaintiff sought to add in the third amended complaint were essentially identical to the claims in the second amended complaint, which the court had dismissed with prejudice, and the dismissal was affirmed on appeal. Those claims cannot be re-litigated. SeeAlpert, supra, 410 N.J. Super.at 539-40.

Finally, the two-year statute of limitations bars the tort claims plaintiff sought to add. SeeNotte, supra, 185 N.J.at 501. Accordingly, the court properly denied plaintiff's motion to file a third amended complaint.

II.

Plaintiff contends that the court abused its discretion in entering the April 7, 2010 order, which denied defendants' motion to dismiss the complaint with prejudice and compelled plaintiff to provide outstanding discovery and appear for deposition; the May 6, 2010 order, which dismissed the complaint without prejudice pursuant to Rule 4:23-5(a)(1) and again compelled plaintiff to provide the outstanding discovery and appear for deposition; and the August 27, 2010 order, which dismissed the complaint with prejudice pursuant to Rule 4:23-5(a)(2). Plaintiff's contention lacks merit.

Generally, "the disposition of discovery issues is left to the sound discretion of the trial court. Its determination of these issues [is] entitled to deference in the absence of a mistaken exercise of discretion." Medford v. Duggan, 323 N.J. Super. 127, 133 (App. Div. 1999). A trial judge abuses his or her discretion when the "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Further, on motion supported by an appropriate affidavit, "[u]nless good cause for other relief is shown, the court shall enter an order of dismissal . . . without prejudice[]" for failure to provide discovery. R. 4:23-5(a)(1) (emphasis added). A "motion to dismiss . . . with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal . . . without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated." R. 4:23-5(a)(2) (emphasis added).

We discern no abuse of discretion in the entry of any of the above-mentioned orders. Plaintiff repeatedly and without good cause failed to provide discovery and appear for deposition. Thus, the court properly entered the April 7, 2010 order compelling him to do so. Plaintiff failed to comply with the April 7, 2010 order without good cause. Accordingly, Rule 4:23-5(a)(1) required the court to enter the May 6, 2010 order dismissing the complaint without prejudice. Plaintiff never filed a motion to vacate the May 6, 2010 order, he failed to fully respond to discovery and appear for deposition, and he presented no circumstances, let alone exceptional circumstances, that would warrant the denial of defendants' motion to dismiss with prejudice. Accordingly, Rule 4:23-5(a)(2) required the court to dismiss the complaint with prejudice.

All other contentions plaintiff raises in his merits brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 Moges was originally named as a plaintiff in this matter. In a May 25, 2007 order, the court dismissed her complaint without prejudice for lack of prosecution and lack of evidence that she had authorized plaintiff to act on her behalf. In a previous appeal filed in this matter, plaintiff's notice of appeal included Moges as an appellant, and he submitted a notarized power of attorney executed by her. Although we found this was procedurally irregular, we regarded the appeal as including Moges. However, we remanded and required Moges to restore her complaint in accordance with the Rules of Court. Plaintiff's present notice of appeal and amended notice of appeal also include Moges as an appellant, and plaintiff submitted another notarized power of attorney executed by her. However, we will not include Moges in this appeal because she never restored her complaint.

2 See U.S. Dep't of State, DNA Relationship Testing Procedures, http://travel.state.gov/visa/immigrants/info/info_1337.html (last visited Nov. 29, 2011).

3 Plaintiff improperly pled DNA Forensic Consultants, LLC as "DNA Consultants, LLC."

4 It is difficult to discern what plaintiff alleges in Count 9. We agree with the trial court's construing of this count to allege a civil rights cause of action.

5 The Board also noted that plaintiff had filed complaints with the State of New York and the American Association of Blood Banks, which were found to lack merit.

6 Lopez v. Swyer, 62 N.J. 267 (1973).

7 N.J.S.A. 10:5-43 to -49.

8 We reject plaintiff's contention in this appeal that this procedure constituted an improper motion in limine. Plaintiff was well aware that the motion and cross-motion were pending, defendants had notified him in accordance with Rule 4:23-5(a)(3) that they would move to dismiss the complaint with prejudice, and the court afforded plaintiff the opportunity to present oral argument. Further, any error in this procedure was harmless because the court dismissed the complaint without prejudice.

9 Plaintiff served new discovery requests on May 1, 2010.