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Cunningham v. Rummel

Decided: February 9, 1988.

ROSE CUNNINGHAM, PLAINTIFF-APPELLANT,
v.
ELIZABETH RUMMEL AND WILLIAM RUMMEL, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Coleman, Havey and Stern. The opinion of the court was delivered by Havey, J.A.D.

Havey

[223 NJSuper Page 16] In this personal injury action, plaintiff appeals from an order dismissing her complaint for failure to attend a deposition. Defendants had moved for an order to set a date certain for the taking of the deposition. The motion was denied because of a "local rule" that the appropriate motion when a party fails to attend a deposition is for dismissal of the complaint or suppression of the answer, rather than to fix a date certain for the deposition. When plaintiff again did not attend a scheduled deposition, defendants moved to dismiss and the motion was granted.

We reverse. There is no authority for a "local rule" limiting sanctions available to a motion judge for a violation of the discovery rules. Here, dismissal of the complaint, predicated at least in part on the "local rule," was an abuse of discretion. We therefore reverse and remand for further proceedings.

On June 16, 1986 plaintiff filed a complaint against defendants seeking damages for injuries she sustained in an automobile accident. Depositions of all the parties were scheduled for November 14, 1986 but were adjourned when defendant Elizabeth Rummel became ill. The depositions were rescheduled for December 19, 1986 but were again adjourned because plaintiff's counsel was unable to attend. The depositions were then set for February 11, 1987. However, defendant Elizabeth Rummel suffered a stroke and could not attend. Plaintiff's counsel refused to produce plaintiff at the depositions. It was his view that all of the parties should be deposed together "in the interest of efficiency."

On April 14, 1987 defendants moved to compel the deposition of the plaintiff on May 14, 1987. The motion judge denied the motion in accordance with a "local rule"*fn1 controlling discovery motions which provided as follows:

If a party does not appear for depositions, the appropriate motion is to dismiss the complaint or strike an answer. You do not move to compel a party to appear for deposition.

The parties then scheduled plaintiff's deposition for May 14, 1987. Plaintiff's counsel was again unable to attend. Defendants thereupon moved to dismiss the complaint. The motion judge granted the motion, observing that R. 4:23-2(b)(3) authorized

the dismissal and that there is no requirement under the rules "that such deposition be scheduled pursuant to Court order. . . ."

On appeal plaintiff contends that the "local rule" circumscribes judicial discretion in the disposition of discovery motions under the Rules Governing Civil Practice. She also argues that the motion judge abused her discretion in dismissing the complaint without making a finding of bad faith or considering alternative sanctions. We agree with both points.

A local court has no authority to promulgate rules which abrogate or modify the rules promulgated by the Supreme Court. The Supreme Court's power to adopt court rules stems from the grant of such authority in N.J. Const. (1947) Art. VI, ยง II, par. 3. See Winberry v. Salisbury, 5 N.J. 240, 245, cert. den. 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). This rule-making authority "has also been widely recognized as falling within courts' inherent powers." State v. Leonardis, 73 N.J. 360, 368 (1977) (Leonardis II); see also Passaic Cty. Probation Officers' Ass'n v. Cty. of Passaic, 73 N.J. 247, 252 (1977). That the Supreme Court's rule-making power and authority over the administration of all courts in the State is exclusive has never been in doubt. Ibid, see also N.J.Dist.Ct. Assoc., Inc. v. N.J.Sup.Ct., 205 N.J. Super. 582, 586 (Law Div.1985), aff'd 208 N.J. Super. 527 (App.Div.), certif. den. 104 N.J. 386 (1986); State v. Whitehead, 159 N.J. Super. 433, 446 (Law Div.1978), aff'd 80 N.J. 343 (1979); U.S. Pipe, etc., Co. v. United Steelworkers of America, 59 N.J. Super. 240, 279 (App.Div.1960); Gargano v. Venezio, 38 N.J. Super. 127, 131 (App.Div.1955); Suchit v. Baxt, 176 N.J. Super. 407, 424 (Law Div.1980).

Discovery rules are designed to further "the public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation." Zaccardi v. Becker, 88 N.J. 245, 252 (1982) ...


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