On appeal from the Superior Court, Law Division, Warren County.
Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
An understanding of this matter before us on an interlocutory appeal by leave granted requires that its procedural history be set forth at some length.
This action was commenced by the filing of a complaint on behalf of "Towpath Unity Tenants Association, an unincorporated association, and Marleah Dixon, individually and on behalf of a class." The complaint alleged that plaintiff association was an unincorporated association comprised of more than seven members acting to protect the mutual interests of the tenants in the Towpath apartments in Independence Township and that plaintiff Dixon was president of the association. Defendants were asserted to be the owners of the apartments and various of its employees.*fn1 Plaintiffs asserted that Dixon and her husband had
entered into a written one-year lease in October 1977 for an apartment in the complex and that prior to plaintiff Dixon entering into the lease defendants made representations to her and to her husband that it was defendants' intention to build certain facilities for the tenants by Spring 1978. The facilities were stated to be tennis courts, a swimming pool, a nine-hole golf course, a recreation area for children and a picnic area. In addition, the complaint alleged that defendants had represented that each apartment would have two air conditioners, cable television and storage space in the basement. Plaintiffs further alleged "upon information and belief" that the recited representations "were made to many other tenants prior to their execution of leases for apartments" and that defendants intended that plaintiff Dixon and the other tenants rely on these representations which defendants knew to be false. Plaintiffs asserted that Dixon and, "upon information and belief," the other tenants relied on the representations and entered into leases, and that except for the representations plaintiff Dixon and, "upon information and belief," the other tenants would not have moved into the premises. Plaintiffs sought compensatory and punitive damages.
The record on appeal does not include the answers filed on behalf of defendants. The parties, however, are in agreement that all defendants filed answers denying that the representations were made. Additionally, the individual defendants asserted that if, in fact, the representations were made, they were given at the direction of the landlord. The landlord claimed that any representations made were unauthorized. We are also told that a third-party complaint was filed against one Geraldine Frye by certain of the defendants. We do not have a copy of that complaint.
Subsequently plaintiffs moved for an order certifying the case as a class action. This motion was granted and the motion judge on July 9, 1979 signed an order certifying the matter as a class action. R. 4:32-2(a). Unfortunately, we do not know what reasoning led the court to grant the motion nor do we know the precise section of R. 4:32-1(b) which the judge perceived governed the action. We think it likely that he relied on R. 4:32-1(b)(3) which permits a class action when questions of law or fact common to the class predominate over questions affecting individual members of the class. We do know that the judge ordered the attorney for defendant landlord to supply plaintiffs' attorney with a list showing the name and address of every tenant who took possession of an apartment at Towpath apartments during 1977 and 1978. The order further provided that after receiving the list plaintiffs' attorney was to give the notice to the class required by R. 4:32-2(b). The order specified that the date for exclusion from the class was September 1, 1979.
The parties are in agreement that the class included 160 families. The precise number of lessees, however, is not clear. In December 1979 the attorney for the landlord served 160 sets of interrogatories on plaintiffs' attorney. The interrogatories are included as a portion of the record on the appeal and are set forth in full in the appendix to this opinion. There are 20 interrogatories in each set. Plainly, they could not be deemed oppressive or unfair in themselves. They ask questions directly related to the representations made to the party, his execution of the lease and whether he inspected the premises before he took possession. Plaintiffs assert, and defendants agree, that plaintiffs sought a protective order granting them some relief from having to obtain 160 answers. Unfortunately, the record does not include a transcript of the argument on the motion. Nor have the parties supplied a signed copy of the order entered following argument. The record does include an unsigned order which apparently reflects the decision on the motion. The order indicates that plaintiffs' motion for a protective order was
denied and that plaintiffs' attorney was to obtain answers to the interrogatories from each member of the class represented by the attorney.
Plaintiffs' attorney had little success in obtaining answers to the interrogatories. In fact, only 16 sets of answers were completed. Consequently, the landlord's attorney moved to dismiss the complaint as to the nonanswering members of the class. The motion was argued on July 21, 1980. After hearing argument the motion judge reserved decision. Insofar as we can ascertain, the judge never has given an opinion with respect to the reserved decision. The record, however, includes an order signed November 6, 1980 granting the motion to dismiss the complaint as to all class members who failed to answer interrogatories. Since the order did not otherwise specify, the dismissal was without prejudice. R. 4:37-2(a). In addition, the judge decertified the matter as a class action and provided that the case proceed as in other civil actions alleging fraud. Presumably, notwithstanding the decertification, it was the intent of the motion judge that the class members who answered interrogatories be plaintiffs in the continuing action even though they are not named in the caption of the complaint. By our order of April 28, 1981 we granted, nunc pro tunc , plaintiffs' motion for leave to appeal from the order of November 6, 1980.
Initially we point out what is not before us on this appeal. We do not deal with the question of whether the action should have ever been certified as a class action. See Riley v. New Rapids Carpet Center , 61 N.J. 218, 227 (1972). The matter is not here after final judgment. An appeal at that time would bring up all interlocutory matters. In re Carton , 48 N.J. 9, 15 (1966). Rather, we granted leave to appeal to review the order dismissing the action because of the failure of the members of the class to answer interrogatories. Thus, we limit our opinion to deciding whether in view of the class members' deficiencies in supplying discovery the order of November 6, 1980 was proper.
The thrust of plaintiffs' argument is that R. 4:23-5(a) permitting dismissal for failure to answer interrogatories deals only with parties; that the members of the class are not parties and that the rules contemplate that they play a passive role, not engaging in discovery.
Nowhere do our rules expressly deal with the question of whether or not members of a class may be required to answer interrogatories. See R. 4:17; R. 4:23; R. 4:32. But there is impressive authority elsewhere that in appropriate circumstances members of a class not actively engaged in the litigation may be required to submit to discovery and that if they do not, their claims may be dismissed. Clark v. Universal Builders, Inc. , 501 F.2d 324, 340-341 (7 Cir. 1974), cert. den. 419 U.S. 1070, 95 S. Ct. 657, 42 L. Ed. 2d 666 (1974); Brennan v. Midwestern United Life Ins. Co. , 450 F.2d 999, 1004-1006 (7 Cir. ...