On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Pashman, Schreiber, Handler and O'Hern. For affirmance -- Justice Pollock. The opinion of the Court was delivered by Pashman, J. Schreiber, J., concurring and dissenting. Pollock, J., dissenting. Schreiber, J., concurring in part and dissenting in part.
This case presents two separate questions. First, when does a plaintiff's failure to answer interrogatories result in the dismissal of his case with prejudice? Second, if such a dismissal is without prejudice, when is a second complaint barred by the statute of limitations? Under the special circumstances presented here, we hold that the prior complaint was not dismissed with prejudice and that defendants are not entitled to assert the statute of limitations as an affirmative defense. We reverse the contrary judgment of the Appellate Division and remand to the trial court for further proceedings.
This is the second suit brought by plaintiffs against two defendant doctors*fn1 to recover damages for alleged medical malpractice in connection with treatment rendered to plaintiff Anthony Zaccardi from 1974 to 1975. The complaint in the first suit, identical to the complaint in this case, was filed in January 1976. On July 28, 1976 the trial court dismissed the complaint
under R. 4:23-5(a) for plaintiffs' failure to answer defendants' interrogatories. For 17 months, despite the dismissal, the case remained on the docket and was adjourned for discovery at least ten times. Plaintiffs did not apprise the trial court of the earlier dismissal, and defendants did not object to the repeated adjournments. Finally, on December 28, 1977, plaintiffs moved to vacate the dismissal and asked for a 60-day extension for discovery. The trial court granted the motions in February 1978. In September 1978 the Appellate Division reversed and reinstated the order of dismissal, without explicitly determining whether such dismissal had been with prejudice. We denied certification. Zaccardi v. Becker, 162 N.J. Super. 329 (App.Div.), certif. den., 79 N.J. 464 (1978) (Zaccardi I).
On November 17, 1978, one month before the Supreme Court denied certification in Zaccardi I, plaintiffs filed a new complaint that was identical to the first. The trial court dismissed the second complaint, holding that the dismissal in Zaccardi I had been final and that the applicable limitations period had run. The Appellate Division affirmed. We granted plaintiffs' petition for certification on November 25, 1980.
The first issue in this case is the standard to be applied in determining when a dismissal for failure to answer interrogatories bars the filing of a new complaint.
R. 4:17-4(b) gives a party 60 days within which to answer interrogatories. R. 4:23-5(a) provides that if timely answers are not served, "and no formal motion for an extension has been made pursuant to R. 4:17-4(b) * * *," the complaint can be dismissed upon ex parte application by the party entitled to the answers within 60 days of the default.*fn2 Under this scheme,
dismissal for failure to answer interrogatories is without prejudice, since it is based on an ex parte application. See Schlosser v. Kragen, 111 N.J. Super. 337, 344 (Law Div.1970).
Dismissal is not necessarily final since the delinquent party may move to vacate the dismissal within 30 days after service of the dismissal order, provided that the delinquent party furnishes fully responsive answers to the interrogatories and pays $50 costs to the Clerk of the Superior Court. R. 4:23-5(a).
Upon motion, the court has discretion whether or not to vacate the dismissal. Normally, when the motion is made within the 30-day limit and all other requirements are met, the motion will be allowed. However, vacation of the dismissal will be disfavored if the delinquent party has failed to comply with the 30-day limit without having moved for an extension of time under R. 4:17-4(b). Failure to move to vacate the dismissal within the 30-day limit set by R. 4:23-5(a) does not by itself bar vacation of the dismissal. Id. at 345-46. The court has discretion to relax the 30-day limit pursuant to R. 1:1-2 to prevent injustice.
Nonetheless, the 30-day limit should be relaxed very sparingly. Routinely allowing attorneys to ignore the time limits in R. 4:23-5(a) would subvert the policy of encouraging expeditious discovery. Attorneys cannot avoid these limits without satisfactory reasons. Moreover, since it is possible to move for an
extension of time to answer interrogatories under R. 4:17-4(b), there must be good reason for relaxation of the rule. As the Appellate Division observed in Zaccardi I,
[i]f our discovery rules are to have any meaningful effect upon calendar control and the early disposition of litigation, they must be adhered to unless, for good cause shown, they are relaxed under R. 1:1-2. The imposition of the severe sanction of dismissal is imposed not only to penalize those whose conduct warrant it, but to deter others who may be tempted to violate the rules absent such a deterrent. [162 N.J. Super. at 332]
Attorneys must comply with the time limits in the procedural rules in order to further the public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation. See id. at 332-33; Gnapinsky v. Goldyn, 23 N.J. 243, 247-48 (1957). The Appellate Division in Zaccardi I rightly refused to vacate the original dismissal 17 months after it was ordered.
When a party moves to vacate a dismissal, a second issue arises. Not only must the court decide whether to vacate the dismissal, but, if it is not vacated, the court must decide whether the dismissal is to be with prejudice. These two decisions are logically independent, and the policy considerations behind each decision are somewhat different. We now address the standard to be applied in determining whether a second complaint should be barred. This is the first time we have addressed this issue in the context of the current R. 4:23-5(a).
Competing policies are involved in disputes over procedural questions such as this. The defendant's right to have the plaintiff comply with procedural rules conflicts with the plaintiff's right to an adjudication of the controversy on the merits. Crews v. Garmoney, 141 N.J. Super. 93, 96 (App.Div.1976).
Because of these competing policies, and because of the varying levels of culpability of delinquent parties, a range of sanctions is available to the trial court when a party violates a
court rule.*fn3 Gnapinsky v. Goldyn, 23 N.J. at 247-48. See, e.g., R. 4:23-2, -4. Thus, although it is the policy of the law that discovery rules be complied with, it is also the rule that drastic sanctions should be imposed only sparingly. Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 339-40 (1951); Schlosser v. Kragen, 111 N.J. Super. at 341. Since dismissal 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, see id. at 346; Savoia v. Woolworth, 88 N.J. Super. 153, 160-61 (App.Div.1965); Gnapinsky v. Goldyn, 23 N.J. at 248, or when the litigant rather than the attorney was at fault, Schlosser v. Kragen, 111 N.J. Super. at 346; Savoia v. Woolworth, 88 N.J. Super. at 161.
Thus, dismissal for failure to answer interrogatories should not ordinarily bar the plaintiff from filing a new complaint within the statute of limitations. W. Milford Tp. Bd. of Ed. v. Rockwell Mfg. Co., 173 N.J. Super. 506, 508 (Law Div.1980). However, when a second complaint is filed, the trial judge in the second case may, if he deems it equitable, dismiss the second complaint, even though the first complaint was dismissed without prejudice. Because of the severity of the sanction, it should be used only sparingly. It would be appropriate only when the second complaint was filed merely to harass the defendant, when the delay has so prejudiced the defendant that his ability to defend his case is seriously impaired, or when other substantial equitable considerations suggest dismissal. It should be remembered that dismissal of the second complaint
will deprive a plaintiff of an adjudication on the merits. See Central R.R. v. Neeld, 26 N.J. 172, 177 (1958) (holding that doctrine of res judicata does not normally come into play where the parties have not had an adjudication on the merits).
The complaint in Zaccardi I was dismissed without prejudice. Dismissal for failure to comply with a court rule or order shall be without prejudice unless the order specifically states that it is to be with prejudice. R. 4:37-2(a). See W. Milford Tp. Bd. of Ed. v. Rockwell Mfg. Co., 173 N.J. Super. at 508. Mere language in the judicial opinion of strong disapproval of misconduct or delay is not enough to convert a "dismissal" to a "dismissal with prejudice." Since the order in Zaccardi I did not explicitly specify that it was with prejudice, a new complaint was not barred by that decision.
We turn therefore to the question of whether the second complaint should be barred on equitable considerations. Plaintiffs' inordinate delay in this case in moving to vacate the dismissal and their failure to bring the dismissal to the court's attention are highly improper. This is particularly true in light of the fact that despite the dismissal, the case remained on the docket. Plaintiffs' attorneys had numerous opportunities to bring the prior dismissal to the court's attention. Justice Weintraub stated in Gnapinsky v. Goldyn,
The rules of court are designed to expedite litigation and are intended for the equal benefit of all parties. . . . There are situations in which relief from the prescribed timetable is warranted, . . . [b]ut the discretion is to be exercised by the courts and not by the ...