On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-4407-01.
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2003
Plaintiffs, Louis J. Severino and Nicholas J. Severino, appeal from an order striking their demand for a trial de novo and dismissing with prejudice their complaint for personal injuries and deprivation of civil rights. The basis for the order was two-fold: (1) Plaintiffs did not personally appear at the arbitration hearing, although their attorney appeared on their behalf, which the motion judge found to be a violation of Rule 4:21A-4(f); and (2) Plaintiffs' attorney did not submit in advance of the arbitration hearing the arbitration statement required by Rule 4:21A-4(a) or present non-testimonial evidence as prescribed in Rule 4:21A-4(c). With respect to the first basis, we conclude the judge misconstrued the rule. With respect to the second basis, under all of the attendant circumstances, we find that the defalcation of counsel was not a sufficient basis for the ultimate sanction of dismissal. Accordingly, we reverse and remand for further proceedings.
Plaintiffs are brothers. Defendants are New Jersey State Troopers. On July 16, 1999, plaintiffs went to the PNC Arts Center in Holmdel to attend a concert. Before entering the building, an incident occurred in the parking area resulting in the arrest of plaintiffs by two of the defendants. Plaintiffs were taken to a State Trooper processing station, where they allege the third defendant sprayed them in the face with pepper mace without justification. Plaintiffs claim they sustained personal injuries and deprivation of their civil rights by virtue of the use of excessive force by defendants. Their three-count complaint seeks compensatory and punitive damages, as well as attorney's fees and costs, alleging federal constitutional violations pursuant to 42 U.S.C.A. § 1983, state constitutional claims and state common law claims.
Plaintiffs filed their complaint on May 25, 2001. Five months later, on October 24, 2001, an answer was filed on behalf of defendants by the New Jersey Attorney General's Office. On August 16, 2002, an order was entered extending discovery until October 20, 2002. By that time, for reasons that are not known to us, defendants were being represented by their fourth law firm. That firm filed a motion on September 10, 2002 seeking a further extension of discovery to March 15, 2003. The motion also sought an adjournment of the arbitration, then scheduled for October 16, 2002, until a date after March 15, 2003. Defense counsel certified that"defendants need additional time" to properly defend the allegations, and that plaintiffs' counsel"agrees that additional time is needed to get this case ready for trial." Plaintiffs consented to the motion, and a proposed consent order was submitted with the moving papers.
The judge granted the motion to extend discovery to March 15, 2003, but denied the portion of the motion requesting adjournment of the arbitration. By the terms of the consent order, it was thus provided that initial responses to paper discovery would be served by September 30, 2002, depositions of fact witnesses would be taken by November 30, 2002, expert reports on behalf of plaintiffs would be served by January 15, 2003, defense expert reports would be served by February 15, 2003, plaintiffs would submit to independent medical examinations not later than March 15, 2003, and depositions of experts would be conducted before March 15, 2003. Nevertheless, the order required the arbitration hearing to go forward as previously scheduled on October 16, 2002.
The order was entered by the court on September 27, 2002. On October 8, 2002, defense counsel wrote to the civil presiding judge, requesting that he override the denial of the request for adjournment of the arbitration date until discovery was complete. After explaining that the discovery deadline had been twice extended, but the case was ordered to go to an arbitration hearing prior to completion of discovery, counsel stated:
Nevertheless, the Defendants, all of whom are State Troopers, face career altering allegations of police brutality. Our firm is the fourth firm to represent the defendants through no fault of the defendants. At the time we received the file in August of this year, there was absolutely no discovery that had been conducted. After taking over the case, we supplied answers to interrogatories to the plaintiffs, but as of the date of this letter, we have not received the plaintiff's answers to interrogatories. Under the circumstances, we request that the arbitration be rescheduled for sometime after March 15, 2003. We have attached a copy of the Consent Order Extending Time for Discovery.
The request was denied. We cannot tell from the record when the presiding judge received the October 8, 2002 letter or when or by what means prior to October 16, 2002 counsel were informed that the request was denied. At that time, Nicholas Severino was a full-time college student in Colorado. Because of the adjournment request, which was consented to by both counsel, Nicholas did not make arrangements to fly to New Jersey to attend the arbitration hearing. We do not know why Louis Severino, who was approximately twenty-four-years-old at that time, did not attend.
Plaintiffs' counsel did not submit an arbitration statement as required by Rule 4:21A-4(a). Defense counsel did submit a statement. Plaintiffs' counsel did attend the arbitration, and she has certified that
[t]he arbitrator was apprised of the plaintiffs' allegations and claims through my presentation of the plaintiffs' version of the events leading up to their arrest and the circumstances of their treatment while in the custody of the defendants, based on the investigation and discovery completed as of the time of the arbitration.
All three defendants personally appeared with their counsel. All three defendants testified before the arbitrator and were cross-examined by plaintiffs' counsel. The arbitrator entered an award attributing 100% of liability to plaintiffs and 0% to ...