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Suarez v. Sumitomo Chemical Co.

Decided: October 4, 1991.

VICTORIA SUAREZ, PLAINTIFF,
v.
SUMITOMO CHEMICAL COMPANY, JOHNSON CHEMICAL COMPANY, INC., SAFEGUARD CHEMICAL CORPORATION, AND JOHN DOES, DEFENDANTS



Donald S. Coburn, J.s.c.

Coburn

DONALD S. COBURN, J.S.C.

This civil action has come before me on defendants' motion pursuant to R. 4:23-5(a) to dismiss the complaint with prejudice based on plaintiff's failure to serve answers to interrogatories. In the past, applications of this nature, designed to conclude litigation for violation of rules governing discovery, were routinely denied. Absent the most extraordinary circumstances, trial courts were constrained to employ less severe sanctions. See, e.g., Johnson v. Mountainside Hosp., Resp. Disease Asso., 199 N.J. Super. 114, 488 A.2d 1029 (App.Div. 1985).

In Aujero v. Cirelli, 110 N.J. 566, 542 A.2d 465 (1988), the Supreme Court dramatically elevated the importance of rule compliance, at least with respect to interrogatory practice, as the foundation for achieving substantial justice. Pursuant to that decision, and effective September 4, 1990, the Court adopted comprehensive amendments to R. 4:23-5(a) which, because of their potential consequences, are of great moment to the bar. R. 4:23-5(a) now provides as follows:

(a) Dismissal.

(1) Without Prejudice. If timely answers to interrogatories are not served and no motion for an extension has been made pursuant to R. 4:17-4(b), the party entitled to the answers 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 further stating that the moving party is not in default in answering, pursuant to R. 4:17-4(a), the interrogatories served by the delinquent party. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice. The delinquent party may move for vacation of the dismissal or suppression order, provided the motion is supported by affidavit stating that fully responsive answers have been served and provided further the delinquent party pays costs in the amount of $100.00 to the Clerk of the Superior Court if the motion is made within 30 days after entry of the order of dismissal without prejudice and $300.00 if the motion is made thereafter.

(2) With Prejudice. If an order of dismissal or suppression without prejudice has been entered and not thereafter vacated, the party entitled to the answers or the court on its own motion may, after the expiration of 90 days from the date of the order, move, on notice, for an order of dismissal or suppression with prejudice. The motion shall be granted unless exceptional circumstances are demonstrated. The attorney for the delinquent party shall, not later than 5 days prior to the return date of the motion, file and serve an affidavit stating that the client has been notified of the pendency of the motion or that the attorney is unable, despite diligent inquiry, to determine the client's whereabouts. The notification to the client shall be in the form appearing as Appendix II-F to these rules, and the attorney's appearance on the return date of the motion shall be mandatory.

(3) General Requirements. All motions made pursuant to this rule shall be accompanied by an appropriate form of order, and all affidavits in support of relief shall include a certification of prior consultation with opposing counsel as required by R. 1:6-2(c). An order of dismissal or suppression shall be entered only in favor of the moving party.

The initial motion for dismissal without prejudice under subsection (1) may be successfully opposed by a showing that good cause exists for the granting of alternative relief such as compelling answers to interrogatories within a specified time, probably conditioned on an award of counsel fees pursuant to R. 4:23-1(c). This provides a critically important opportunity for the delinquent party's attorney because it will be far easier to meet the good cause standard than the subsection (2) standard of demonstrating "exceptional circumstances." In Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409, 209 A.2d 651 (App.Div. 1965), the court had this to say regarding application of the concept of good cause:

It is impossible to lay down a universal definition of good cause . . . or an allinclusive and definitive catalogue of all of the circumstances to be considered by a court in determining whether ...


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