Yanoff, J.s.c. (retired and temporarily assigned on recall).
[221 NJSuper Page 633] Sally Suppa (Suppa) and Frank Humiec (Humiec) are plaintiffs in a series of suits filed against defendant Hoffmann-LaRoche, Inc. alleging unlawful discharge. The complaints of both Suppa and Humiec were dismissed for failure to make discovery. The problems herein arise on motions to restore the complaints to the trial list, and on defendant's motion for attorney's fees if the cases are restored.
In Suppa, the complaint, filed October 18, 1985, alleged employment discrimination. The answer, after a consent to an extension of time, was filed January 27, 1986.
On January 15, 1986 defendant requested document production from plaintiff, pursuant to R. 4:18-1. The documents requested consisted of manuals and publications issued by defendant, allegedly governing plaintiff's term of employment. The documents not having been produced on April 28, 1986, defendant's attorneys made a telephone request in which an attorney promised, on behalf of plaintiff, to produce the documents by May 9, 1986. This was confirmed by letter the following day. No documents were forwarded and defendant moved before the Superior Court for an order compelling production within 15 days. See R. 4:23-1. In the absence of opposition, on May 23, 1986, Judge Camarata signed the order.
Thereafter, on May 29, 1986, June 3, 1986, and August 28, 1986, plaintiff's counsel, by letter, advised plaintiff of the outstanding document request, and that her case would be dismissed if she did not produce the documents. Plaintiff's attorneys made no attempt to advise defense attorneys of the situation. There is no indication that plaintiff's attorneys made further attempts to obtain the requested documents.
On June 10, 1986 Judge Thompson signed an ex parte order dismissing plaintiff's complaint for failure to comply with the order of May 23, 1986. R. 4:23-2(b)(3).
Plaintiff and her lawyers did not communicate until December 1986. Nor did plaintiff's lawyers communicate with defendant's attorney from June 1986 to April 1987, when plaintiff eventually produced some of the requested documents.
On May 7, 1987 plaintiff filed a motion to vacate the dismissal and to restore plaintiff's complaint. In her supporting certification plaintiff's counsel avered that plaintiff's "failure to respond to counsel's request is submitted to constitute excusable neglect."
In Humiec, plaintiff's complaint alleging age employment discrimination was filed November 8, 1985. The answer was filed February 24, 1986, time having been extended. Defendant's interrogatory demand was served on May 21, 1986, pursuant to R. 4:17-1. On May 23, 1986, plaintiff's lawyers wrote asking plaintiff to come to their offices to answer the interrogatories. The interrogatories were due July 21, 1986.
At oral argument, plaintiff's attorney revealed that plaintiff was represented by the law firm with which she is associated, not only in this case, but in a workers' compensation case, and that he came to the office at various times in connection with the workers' compensation matter to see lawyers in the division of that office handling that type of case. Neither the workers' compensation section of the office, nor the lawyer handling this case knew of the other's activity and Humiec was not sent to the appropriate lawyer to answer the interrogatories.
After the due date of the interrogatories, on July 21, a follow-up letter was sent to plaintiff's lawyers, dated August 12, 1986. Nevertheless, plaintiff's lawyers did not attempt to communicate with plaintiff for the purpose of getting answers.
On August 25, 1986 Judge Neagle signed an ex parte order dismissing plaintiff's complaint for failure to supply answers to interrogatories pursuant to R. 4:23-5.
On September 16, 1986 and on October 10, 1986 plaintiff's counsel sent a letter to plaintiff requesting that plaintiff appear to prepare answers. There was no further communication between plaintiff and counsel's litigation department until the latter part of November 1986. Answers were not completed until the early part of 1987, and not forwarded to defense counsel until April 13, 1987. There is no indication that plaintiff's counsel made any attempt prior to April 1987 to communicate with defense counsel or the court to explain the delay in reinstating plaintiff's case.
On April 21, 1987 plaintiff filed a motion to vacate the dismissal and to restore the complaint. In her supporting
certification plaintiff's attorney claimed that "plaintiff has a meritorius [ sic ] case and is entitled to his day in court" and that plaintiff's "failure to ...