0ROBERT J. TRIFFIN v. UNITED STATES FIRE INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0225-13T40

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

UNITED STATES FIRE INSURANCE

COMPANY, Individually and

d/b/a CRUM & FORSTER,

Defendant-Respondent,

and

JUAN PINERO,

Defendant.

_________________________________

December 23, 2014

Argued December 10, 2014 Decided

Before Judges Fuentes, Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Special Civil Part, Camden County, Docket No. DC-2147-13.

Robert J. Triffin, appellant, argued the cause pro se.

Marianne C. Tolomeo argued the cause for respondent (Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., attorneys; Michael F. Bevacqua, Jr., of counsel; Ms. Tolomeo, on the brief).

PER CURIAM

Plaintiff appeals from an April 30, 2013 order dismissing his complaint against defendant United States Fire Insurance Company, Inc., (United) with prejudice, for failing to timely provide answers to United's interrogatories and responses to its notice to produce. For the reasons that follow, we reverse.

I

On October 22, 2012, plaintiff filed a complaint in the Law Division, Special Civil Part, against United and co-defendant Juan Pinero1. The gist of the complaint was that United had issued a check to Pinero in the amount of $848, which Pinero cashed at Pennsauken Check Cashing. When this entity presented the check for payment, the check was dishonored. Plaintiff purchased the dishonored check from Pennsauken Check Cashing and sued defendants to recover the amount of the check, as well as interest and fees.

On February 26, 2013, United filed an answer and motion for leave to serve plaintiff with more than the five interrogatories permitted in those matters that are cognizable but not pending in the Small Claims Section2, see R. 6:4-3(f), as well as for leave to take depositions, see R. 6:4-4. United also sought leave to serve a notice to produce upon plaintiff. Along with the answer and motion, United forwarded to plaintiff forty-eight interrogatories and forty-nine requests for production of documents.

On March 11, 2013, the court granted United's motion and, among other things, ordered plaintiff to serve answers to United s interrogatories within thirty days and responses to its notice to produce within thirty-five days. United did not receive the March 11, 2103 order from the court until March 20, 2013, although United promptly served plaintiff with the order the following day. However, because of the delay, the parties agreed plaintiff could have until April 19, 2013 to serve answers to interrogatories and until April 24, 2013 to serve responses to the notice to produce. Meanwhile, on March 26, 2013, the court scheduled the matter for trial on April 30, 2013.

On April 19, 2013, United wrote a letter to the court requesting an adjournment of the trial because plaintiff had not yet provided the court ordered discovery and, consequently, United needed more time to prepare for the upcoming trial on April 30, 2013. The court denied the adjournment request. While United's representation to the court that plaintiff s discovery was overdue was not accurate plaintiff's responses to United's notice to produce were not due for another five days the court did not explain its reasons for denying the adjournment. After all, it was not disputed that, once United received discovery from plaintiff, United would need time to conduct other discovery and thus would not be ready for trial by April 30, 2013.

As mandated by Rule 6:4-7(b), if a trial in the Special Civil Part has been scheduled before the time for discovery has expired, the court is required to grant an adjournment request to allow a party to complete discovery. Under Rule 6:4-5, discovery ends ninety days after a defendant has served its answer. Here, the record does not reveal when United served its answer but its answer was filed with the court on February 26, 2013. Therefore, discovery was not due to expire for at least another month.

On the morning of April 29, 2013, plaintiff served defendant with discovery. That afternoon, defendant filed and served a motion to dismiss the complaint with prejudice pursuant to Rule 4:23-2(b)(3)3 on the ground plaintiff failed to provide all of the discovery that was ordered by the court. In the alternative, defendant sought a sixty-day adjournment of the trial, which was scheduled for the following day, and an order compelling plaintiff to provide fully responsive answers to interrogatories and responses to the notice to produce.

Following oral argument on the day scheduled for trial, the court dismissed plaintiff's complaint with prejudice, finding that

Mr. Triffin has violated the spirit of

the discovery rules. But that would not

cause a dismissal. What causes the

dismissal is the violation of my court

order because of the handing down of the

so-called answers to the interrogatories

yesterday morning, the day before the trial.

I think that is inappropriate. I think that s taking advantage of the system, and quite honestly I m not going to allow that to happen. The matter is going to be dismissed.

. . . .

That's with prejudice.

The court did not make any findings about the sufficiency of plaintiff's discovery responses or whether plaintiff's delay in providing the discovery was contumacious.

II

"[T]he standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion, a standard that cautions appellate courts not to interfere unless an injustice appears to have been done." Abtrax Pharm. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). A court abuses its discretion "when a decision is 'made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

The dismissal of a complaint with prejudice is regarded as drastic, and is "'not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious.'" Abtrax Pharm., supra, 139 N.J. at 514 (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)). As the dismissal of a complaint with prejudice is "the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault." Zaccardi v. Becker, 88 N.J. 245, 253 (1982) (internal citations omitted). Dismissal with prejudice must be "a recourse of last resort, not to be invoked unless no lesser sanction is adequate in view of the nature of the default, its attendant prejudice to other parties, and the innocence of the sanctioned litigant." Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 52 (App. Div. 2003).

Here, it is undisputed plaintiff's answers to interrogatories were ten days and his responses to the notice to produce five days overdue. However, a delay of a little more than a week in one instance and less than a week in the other did not warrant the ultimate sanction of dismissing plaintiff's case with prejudice. In those few cases where a party's pleading has been stricken with prejudice, the offending party had engaged in an egregious and prolonged campaign to thwart another party's access to discovery. See, e.g., Abtrax Pharm., supra, 139 N.J. at 499 (finding the "extreme sanction" of dismissing complaint with prejudice justified where plaintiff falsely represented documents did not exist for years when they were in plaintiff's possession); Fik-Rymarkiewicz v. Univ. of Med. & Dentistry of N.J., 430 N.J. Super 469 (App. Div.) (affirming trial court's dismissal of complaint with prejudice where for years plaintiff refused to provide responsive discovery), certif. denied, 214 N.J. 118 (2013).

The trial court also failed to make any findings that the discovery plaintiff produced was unresponsive or incomplete. Even if the discovery had been deficient, the court should have considered lesser sanctions to compel plaintiff to provide United with the discovery it was entitled to receive, as well as purge any prejudice it may have suffered. The trial court could have entered an order dismissing plaintiff's complaint without prejudice, see R. 4:23-2(b)(3), with the caveat the complaint could not be restored unless fully responsive answers to interrogatories and responses to the notice to produce were provided. The court could have further provided that the complaint would be dismissed with prejudice if plaintiff did not successfully restore the complaint by a time certain. That way, plaintiff would be motivated to provide the disputed discovery if he wanted to proceed with his matter or, if he decided otherwise, United would be in a position to readily obtain a dismissal of the complaint with prejudice. If the court had determined the discovery was sufficient, a short adjournment of the trial would have enabled United to complete discovery.

Accordingly, we conclude the trial court mistakenly exercised its discretionary authority when it dismissed plaintiff's complaint with prejudice. The discovery plaintiff provided was only minimally overdue. Any prejudice the delay caused United could have been readily addressed by a sanction far less severe than the dismissal of plaintiff's case with prejudice.

Plaintiff argues that, if the April 30, 2013 order is reversed, the trial judge who dismissed his complaint must be recused from hearing this matter. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Pinero did not file a responsive pleading and, after entry of default, plaintiff obtained a default judgment against him, on July 29, 2013.

2 Small claims actions are those defined in Rule 6:1-2(a)(2) and the amount in dispute is $3,000 or less.

3 Under Rule 6:4-6, the provisions of Rule 4:23-2 apply to actions in the Special Civil Part.