On appeal from the Superior Court, Law Division, Middlesex County.
Before Judges Kestin and Wefing.
The opinion of the court was delivered by
After issue had been joined in this personal injury action, defendants served plaintiffs with interrogatories on June 24, 1989.
No answers were served. More than five months later, following unsuccessful attempts to communicate with plaintiffs' attorneys both by letter and telephone, defendants moved, on notice, pursuant to R. 4:23-5(a), as it then provided, for dismissal of the complaint. No response to the motion was filed. The complaint was dismissed on December 4, 1989, and a copy of the order was served on plaintiffs' attorneys. Plaintiffs made no motion to vacate the dismissal, as contemplated in the rule at that time.
On November 9, 1990, almost eleven months following entry of the order of dismissal, and after R. 4:23-5 had been amended to its present form, defendants moved, again with notice, under subparagraph (a)(2) of the rule, for an order dismissing the case with prejudice. No response to this motion was filed, and plaintiffs' attorneys did not discharge their other obligations under the rule. The requested order of dismissal with prejudice was duly entered and a copy was served on plaintiffs' attorneys.
Over a year later, plaintiffs moved to reinstate the complaint, citing the conduct of "a disgruntled employee who closed files without reason and without [plaintiffs' attorneys'] knowledge" as the explanation for their failure to respond on four different occasions in the distant past. The motion was opposed by defendants. After a responding affidavit from plaintiffs' attorneys was filed, urging "excusable neglect," the motion was denied. The order was served on defendants' attorneys by letter dated about six weeks after the date the order was entered.
No appeal was taken from the order denying the reinstatement motion. Nothing was filed in the matter for twenty-one additional months after that denial, at which time plaintiffs moved again to reinstate the complaint. Additional detail was provided concerning the "disgruntled secretary" who had "thrown out" "the various motions and orders sent to [plaintiffs' attorneys'] office by defense counsel" before any attorney in the firm could see them. Additionally, "to further compound this problem, when the court's order denying our motion was received . . . the file was mistakenly closed [because of] the confusion of the secretary who
had taken the place of the aforementioned offending secretary." Defense counsel filed opposition to this second motion to reinstate the complaint. The motion was granted. Defendants appeal. We reverse.
R. 4:23-5 is crystal-clear in its intendment and its mechanics. After a party has defaulted in her discovery obligations and has failed to respond or initiate action on each of the occasions provided in the rule, that party has foregone four opportunities to discharge her responsibilities as a ...