Before Judges Levy, Carchman and Lefelt.
The opinion of the court was delivered by: Lefelt, J.S.C., (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 1999
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Plaintiff Martha Adedoyin appeals from denial of her motion to vacate the dismissal of her complaint without prejudice and from the grant of defendants' cross-motion to dismiss her complaint with prejudice for failure to answer interrogatories. The motion Judge did not explain why he decided to dismiss plaintiff's complaint instead of compelling more specific answers, which relief had been alternatively sought by defendants. Because we are unable to determine whether the motion Judge's discretion was properly exercised, we vacate the dismissal, reinstate the complaint and remand to determine whether more specific answers should be compelled or plaintiff's complaint dismissed without prejudice under R. 4:23-5(a)(1).
On January 29, 1998, defendants served Adedoyin with interrogatories and document production requests. On May 4, 1998, Adedoyin provided the requested documents, but did not answer the interrogatories.
Forty-six days after the interrogatories were due, on May 15, 1998, defendants filed a motion to dismiss Adedoyin's complaint for failure to answer the January 29, 1998, interrogatories. Alternatively, defendants moved for an order compelling discovery.
On June 8, 1998, four days before the motion's return date, defendants received Adedoyin's answers to the January 29, 1998, interrogatories. Of seventy-four interrogatories with subparts, defendants asserted in a June 9, 1998, letter that Adedoyin's answers to fourteen questions were not "fully responsive." Accordingly, defendants refused to withdraw their motion and claimed that because the answers were not fully responsive, they should be treated as if plaintiff failed to answer. Defendants' June 9, 1998, letter invited Adedoyin's counsel to contact defense counsel if he had any questions or would like to discuss this matter further. Instead of discussing this matter with defense counsel, Adedoyin's counsel filed a certification stating that "plaintiff provided answers to defendants' interrogatories."
On June 12, 1998, the first motion Judge granted defendants' motion to dismiss Adedoyin's case without prejudice. This motion Judge did not find any facts or otherwise explain why he decided to dismiss plaintiff's complaint instead of compelling more complete answers.
Thereafter, instead of serving answers to the interrogatories that would have met defendants' objections and paying the restoration fee, Adedoyin, on July 24, 1998, filed a motion to vacate the first motion Judge's June 12 order. Defendants opposed this motion, and on August 21, 1998, the first motion Judge denied Adedoyin's motion. Again, this motion Judge failed to explain his decision.
Once again, maintaining that the dispute was over the adequacy of the answers and not a failure to answer, Adedoyin moved to vacate the first motion Judge's June 12 and August 21 Orders. Now, because more than ninety days had transpired since the June 12, 1998, dismissal without prejudice, defendants cross-moved to dismiss Adedoyin's complaint with prejudice. After oral argument on September 25, 1998, a second motion Judge denied Adedoyin's motion to vacate and granted defendants' cross-motion to dismiss with prejudice. This Judge stated:
I think it's quite obvious, that when (first motion Judge) had the original motion, he had an opportunity to view the answers. And I am sure that he viewed many of the important ones. The questions asking for the factual basis, in considerable detail, to support various parts of the claim in the complaint, were quite deficient. And really didn't-- doesn't-- did not serve to give the defendant any real information about the facts behind the lawsuit. And one would expect the plaintiff to have a factual basis for allegations, once suit is filed.
The fact of the matter, is that I cannot find that res--fully responsive answers have ever been served to many of the questions-- to many of the obviously important questions.
The cases, cited by counsel, I think they're all pre-1990 cases. 1990, being when Rule 4:23-5 was amended. And I think amended to indicate that it would take rather unusual circumstances, highly unusual ones, ...