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TURNER-ADENIJI v. ACCOUNTANTS

July 26, 1995

DIANNE R. TURNER-ADENIJI, PLAINTIFF,
v.
ACCOUNTANTS ON CALL, DEFENDANT.



The opinion of the court was delivered by: JOHN C. LIFLAND

 LIFLAND District Judge

 Presently before the Court is defendant's motion to dismiss.

 Background

 This is a discrimination action arising from plaintiff's visit to a job fair, which took place in Newark, New Jersey and in which defendant participated. Plaintiff is an African-American woman, aged 41 years old and appears to allege that defendant did not employ her on account of her race, age and gender.

 Defendant now moves for dismissal on three grounds: (1) this action was filed in the Superior Court of New Jersey and was dismissed with prejudice for plaintiff's failure to respond to interrogatories; (2) plaintiff fails to state a claim; and (3) plaintiff failed to file her written narrative statement as required by the Magistrate-Judge's Scheduling Order of October 6, 1994.

 State Court Proceeding

 Prior to bring this action, plaintiff brought an identical action in the Superior Court of New Jersey. That action was dismissed for plaintiff's failure to comply with a discovery order. Defendant now argues that "law of the case" bars this action. Because this is an entirely separate action, law of the case doctrine is not applicable here. However, the question of whether plaintiff is barred by the doctrine of res judicata from bringing this Title VII action is not so simply answered.

 The constitutional doctrine of full faith and credit is codified at 28 U.S.C. ยง 1738, which provides that the judicial proceedings of any court of any "State, Territory or Possession of the United States," when properly authenticated, "shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." Thus, a federal court must give a judgment the same effect as would be given by the court issuing the judgment.

 New Jersey courts regularly apply res judicata to default judgments where a defendant failed to answer. Crispino v. Chemical Bank New Jersey, N.A., 160 Bankr. 749, 752-755 (D.N.J. 1993) (citing Phillips v. Phillips, 118 N.J. Eq. 189, 192, 178 A. 265 (Ch. Div. 1935), rev'd on other grounds, 119 N.J. Eq. 462, 183 A. 220 (E. & A.) aff'd in part, 119 N.J. Eq. 497 (E. & A. 1936); Evangel Baptist Church v. Chambers, 96 N.J. Super. 367, 370-71, 233 A.2d 82, (Ch. Div. 1967); Girard Trust Co. v. McGeorge, 128 N.J. Eq. 91, 101, 15 A.2d 206 (Ch. Div. 1940)). Although the Court has not found a specific case applying res judicata to a dismissal ordered as a sanction, the Court presumes that the New Jersey courts would in general give res judicata effect to such dismissals in order to effectively enforce their procedural rules. See Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 655 A.2d 1368 (1995) (affirming dismissal for discovery misconduct that was found to be willful and "contumacious"). However, the New Jersey Supreme Court has also stated that the "ultimate sanction of dismissal" should be used "only sparingly" where no other sanction would suffice. Id. at 1375. Further, in Novack v. Chait, 241 N.J. Super. 614, 575 A.2d 908 (App. Div. 1990), the court held that dismissal for failure to answer interrogatories was inappropriate where the plaintiff was unrepresented by counsel and was suffering from psychiatric and physical disabilities.

 Additionally, the Court does not believe that the full faith and credit doctrine requires that the judgment be given preclusive effect. While it is clear that under the full faith and credit doctrine a federal court must give a judgment the same effect as the court issuing the judgment, that doctrine is of doubtful application where, as here, the judgment of dismissal is a penalty dismissal and the issues involved are issues of federal civil rights, an area of obviously heightened federal concern. Although there appear to be no cases directly dealing with whether penalty dismissals should be given preclusive effect under full faith and credit, commentators have addressed this concern.

 
[The problems of how to treat] penalty dismissals seem exquisitely difficult. Dismissals for failure to prosecute or to comply with a discovery order are common examples. Such dismissals do not involve any determination of the merits of the claim; the only reason for precluding a second action is that the first court must have effective sanctions to compel adherence to good procedure. The only strong argument for compelling other courts to preclude a second action is that they owe this assistance to the procedural rules of the first court. This argument is so strong that it probably deserves entry into the realm of full faith and credit. A penalty default judgment for the plaintiff, after all, is almost certainly entitled to enforcement. The result, however, lies a great distance from the clear core of full faith ...

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