MICHAEL J. KELSEY v. PLYMOUTH ROCK ASSURANCE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3062-
19
MICHAEL.J. KELSEY,
Plaintiff-Appellant,
v.
PLYMOUTH ROCK ASSURANCE,
d/b/a PLYMOUTH ROCK
MANAGEMENT COMPANY OF
NEW JERSEY, d/b/a HIGH
POINT PREFERRED
INSURANCE COMPANY,
Defendant-Respondent.
______________________________
Submitted October 6, 2021 – Decided November 5, 2021
Before Judges Whipple and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Morris County, Docket No. DC-
001923-19.
Michael J. Kelsey, appellant pro se.
Tango, Dickinson, Lorenzo, McDermott & McGee,
LLP, attorneys for respondent (Richard M. Tango, of
counsel; Michael W. Cartelli, on the brief).
PER CURIAM
In this appeal, we considered whether the trial court abused its discretion
in granting the defendant Plymouth Rock Assurance, d/b/a Plymouth Rock
Management Company of New Jersey, d/b/a High Point Preferred Insurance
Company (High Point)'s Rule 4:23-5(a)(2) motion for a dismissal with
prejudice for plaintiff's failure to provide discovery. The trial court's January
2020 order only stated: "Plaintiff has failed to demonstrate compliance with
Rule 4:23-5(a)(2)." We reverse.
Plaintiff Michael J. Kelsey's complaint alleged that a snowstorm
damaged his primary residence on March 8, 2018, and that he reported the
damage to defendant High Point in November 2018, but High Point denied the
insurance claim. On March 8, 2019, Kelsey sued High Point for damages.
On June 3, 2019, the court entered an order dismissing Kelsey's
complaint without prejudice for failure to provide discovery pursuant to Rule
4:23-5. On September 12, 2019, High Point moved to dismiss Kelsey's
complaint with prejudice for failure to provide discovery pursuant to Rule
4:23-5. By letter dated October 1, 2019, High Point notified Kelsey that:
[The] order can be vacated only by a formal motion.
You must fully respond to demand for discovery
pursuant to R. 4:17, R. 18-1 or R. 4:19 and served on
behalf of High Point Preferred Insurance prior to the
A-3062-19
2
filing of such motion, and you must pay a restoration
fee of $100[] if the motion to vacate is made within
[thirty] days after entry of this order, and in the
amount of $300[] if the motion is made thereafter. . . .
Failure to file such a motion within [sixty] days after
the entry of this order may result in the imposition of
counsel fees and the assessment of costs against you
or may forever preclude the restoration of the
pleading(s) filed on your behalf.
On September 30, 2019, the court denied High Point's motion because "it
fail[ed] to comply with R. 4:23-5(a) because it d[id] not recite the verbiage
required in Appendix II-B."
On November 27, 2019, Kelsey filed a motion opposing High Point's
interrogatories and to limit interrogatories to twenty-five questions "with no
sub-parts." Kelsey asserted that he could not complete High Point's
interrogatories due to his "medical disorders and disabilities" and because the
questions "caused annoyance, additional expense, oppression and undue
burden."
On December 5, 2019, High Point filed a second motion to dismiss
Kelsey's complaint with prejudice for failure to provide discovery pursuant to
Rule 4:23-5. High Point also filed a certification of counsel stating "[t]he
motion to dismiss the [c]omplaint with prejudice has been served upon
plaintiff in accordance with R. 4:23-5([a]) and the verbiage required in
A-3062-19
3
[A]ppendix II-B." On December 5, 2019, High Point advised Kelsey by letter
that:
[A] motion has been filed with the court by High Point
Preferred Insurance Company seeking to dismiss with
prejudice the pleading(s) filed on your behalf. This
relief is being requested because a previous order of
dismissal without prejudice was entered and you have
still not fully responded to demands for discovery
pursuant to R. 4:17, R. 4:18-1 or R. 4:19. If this
motion is granted, your claim will be dismissed and
may not be subject to restoration or your answer will
be stricken and judgment by default may be entered
against you.
On January 6, 2020, the court issued an order dismissing Kelsey's
complaint with prejudice for failure to provide discovery pursuant to Rule
4:23-5. The order stated: "Plaintiff has failed to demonstrate compliance with
Rule 4:23-5(a)(2)." The court made no additional findings but denied Kelsey's
motion, to oppose and limit High Point's interrogatories, as moot.
"[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" absent injustice. See
Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995).
Accordingly, "[a] trial court has inherent discretionary power to impose
sanctions for failure to make discovery, subject only to the requirement that
A-3062-19
4
they be just and reasonable in the circumstances." Id. at 513 (quoting
Calabrese v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div.
1978), aff'd, 82 N.J. 321, 413 (1980)). A trial court abuses its discretion when
its "decision [is] made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis." United States
v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor,
171 N.J. 561, 571 (2002)).
"[B]ecause dismissal with prejudice is 'the ultimate sanction,' it should
be imposed 'only sparingly' and 'normally . . . ordered only when no lesser
sanction will suffice to erase the prejudice suffered by the non-delinquent
party.'" Salazar v. MKGC Design, 458 N.J. Super. 551, 561-62 (App. Div.
2019) (alteration in original) (quoting Robertet Flavors v. Tri-Form Constr.,
Inc., 203 N.J. 252, 274 (2010)).
Rule 4:23-5 "authorizes motions and sanctions [for] a party's failure to
make discovery," id. at 560, and "codifie[s] a two-step procedural paradigm
. . . before the [court can impose a] sanction of dismissal of a complaint with
prejudice for failing to answer interrogatories or provide other discovery."
Thabo v. Z Transp., 452 N.J. Super. 359, 369 (App. Div. 2017) (citing St.
James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App.
A-3062-19
5 Div. 2008)). A court must "scrupulously follow[] and technically compl[y]
with" the procedural steps. See ibid. (citing Sullivan v. Coverings &
Installation, Inc., 403 N.J. Super. 86, 95 (App. Div. 2008)).
Parties and the court must first adhere to Rule 4:23-5(a)(1) for dismissal
without prejudice, before proceeding under Rule 4:23(a)(2) for dismissal with
prejudice. Thus, the first step provides:
If a demand for discovery pursuant to R. 4:17, R. 4:18,
or R. 4:19 is not complied with and no timely motion
for an extension or a protective order has been made,
the party entitled to discovery may . . . move, on
notice, for an order dismissing or suppressing the
pleading of the delinquent party. The motion shall be
supported by an affidavit reciting the facts of the
delinquent party's default and stating that the moving
party is not in default in any discovery obligations
owed to the delinquent party. Unless good cause for
other relief is shown, the court shall enter an order of
dismissal or suppression without prejudice. Upon
being served with the order of dismissal or
suppression without prejudice, counsel for the
delinquent party shall forthwith serve a copy of the
order on the client by regular and certified mail, return
receipt requested, accompanied by a notice in the form
prescribed by Appendix II-A of these rules,
specifically explaining the consequences of failure to
comply with the discovery obligation and to file and
serve a timely motion to restore. If the delinquent
party is appearing pro se, service of the order and
notice hereby required shall be made by counsel for
the moving party. The delinquent party may move on
notice for vacation of the dismissal or suppression
order at any time before the entry of an order of
A-3062-19
6
dismissal or suppression with prejudice. The motion
shall be supported by affidavit reciting that the
discovery asserted to have been withheld has been
fully and responsively provided . . . .
[R. 4:23-5(a)(1).]
The second step allows for dismissal with prejudice.
If an order of dismissal or suppression without
prejudice has been entered pursuant to paragraph
(a)(1) of this rule and not thereafter vacated, the party
entitled to the discovery may, after the expiration of
[sixty] days from the date of the order, move on notice
for an order of dismissal or suppression with
prejudice. The attorney for the delinquent party shall,
not later than [seven] days prior to the return date of
the motion, file and serve an affidavit reciting that the
client was previously served as required by
subparagraph (a)(1) and has been served with an
additional notification, in the form prescribed by
Appendix II-B, of the pendency of the motion to
dismiss or suppress with prejudice. In lieu thereof, the
attorney for the delinquent party may certify that
despite diligent inquiry, which shall be detailed in the
affidavit, the client's whereabouts have not been able
to be determined and such service on the client was
therefore not made. If the delinquent party is
appearing pro se, the moving party shall attach to the
motion a similar affidavit of service of the order and
notices or, in lieu thereof, a certification as to why
service was not made. Appearance on the return date
of the motion shall be mandatory for the attorney for
the delinquent party or the delinquent pro se party.
The moving party need not appear but may be required
to do so by the court. The motion to dismiss or
suppress with prejudice shall be granted unless a
motion to vacate the previously entered order of
A-3062-19
7
dismissal or suppression 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).]
We reverse and remand for the following reason. The trial court abused
its discretion by failing to make findings and by giving a bare explanation
when it granted High Point's motion to dismiss with prejudice for Kelsey's
failure to provide discovery pursuant to Rule 4:23-5. The court's one-sentence
rationale – "Plaintiff has failed to demonstrate compliance with Rule 4:23-
5(a)(2)" – is plainly insufficient.
The panel further notes that when delinquent parties appear pro se, Rule
4:23-5(a)(2) specifically requires that "the moving party shall attach to the
motion an affidavit of service of the order and notices or, in lieu thereof, a
certification as to why service was not made." The record before us does not
show that High Point attached an affidavit of service to the motion in
conformance with the rule.
Thus, the dismissal order is vacated, and plaintiff's complaint is
reinstated. The trial court shall conduct a management conference within
thirty-five days, then enter a discovery order specifying the remaining
discovery needed and the deadlines for completion. Plaintiff shall, therefore,
A-3062-19
8
have explicit notice of his discovery obligations and the consequences of
failing to discharge those obligations within the proscribed time.
Our opinion should not be read as precluding defendant from seeking
fees or appropriate sanctions stemming from the motion practice necessitated
by plaintiff's failure to provide discovery. See R. 4:23-5(a)(3). Nor should it
be read to preclude defendant from moving to dismiss plaintiff's complaint
with prejudice based on any future failure to provide discovery.
Reversed and remanded for proceedings consistent with this opinion.
We do not retain jurisdiction.
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9
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