On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1059-04.
The opinion of the court was delivered by: Baxter, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2007
Before Judges Winkelstein, Fuentes and Baxter.
Plaintiffs Glenn T. Cooper and Glenn E. Ford appeal from a July 21, 2006 order denying their motion to reinstate their complaint and extend the period of discovery. We conclude that the denial of the motion was not an abuse of discretion, and affirm.
Plaintiffs filed suit under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, on March 22, 2004. The original discovery end date was August 28, 2005. On June 2, 2004, defendant Consolidated Rail Corporation served its first set of document requests. Plaintiffs failed to comply. On December 2, 2004, defendant served plaintiffs with interrogatories, and notices of depositions to be held in late February 2005. On December 22, 2004, defendant served a second set of document requests on each plaintiff. Plaintiffs failed to comply with the discovery requests and failed to appear for depositions.
Discovery was extended to October 28, 2005, during which time plaintiffs continued to fail to comply. As a result, discovery was again extended to January 21, 2006, to permit plaintiffs to comply with defendant's written requests for discovery and complete depositions. Again, plaintiffs did not comply. On February 3, 2006, the return date of defendant's January 16, 2006 motion to dismiss, plaintiffs' counsel advised the court of a conflict between himself and one of the plaintiffs, and by order of February 3, 2006, plaintiffs' counsel was allowed to withdraw. The court denied defendant's motion to dismiss, and plaintiffs were given thirty days to seek and retain new counsel.
Plaintiffs did not do so during that ordered time period, and during the March 3, 2006 argument of defendant's motion for reconsideration, the court denied defendant's motion for dismissal of plaintiffs' complaint with prejudice pursuant to Rule 4:23-2, "Failure to Comply with Order." Instead, the court chose to proceed under Rule 4:23-5, "Failure to Make Discovery." Pursuant to the latter rule, the delinquent party is afforded ninety days to satisfy the outstanding discovery requests and thereby avoid a dismissal with prejudice. R. 4:23-5(a)(2). During the March 3, 2006 motion hearing, Judge Brock patiently and thoroughly explained to each plaintiff his discovery obligations and the measures needed to avoid a dismissal with prejudice and asked each plaintiff if he understood. In response to her question, each plaintiff indicated that he understood. The judge made a notation on her March 3, 2006 order reflecting that explanation, and wrote, "[t]he Court explained to the plaintiffs that they could comply with discovery and file a motion to vacate the dismissal within the next ninety days to avoid a dismissal with prejudice." (emphasis added.)
The transcript of that motion hearing also reflects defense counsel's promise to again provide each plaintiff with a complete copy of all discovery that plaintiffs were required to provide within ninety days to avoid the dismissal with prejudice that Judge Brock had described. On March 3, 2006, counsel for defendant sent each plaintiff, by certified mail, a package containing a copy of the March 3, 2006 order, along with the interrogatories, document requests and deposition notices. Each plaintiff, on March 16, 2006, signed his return receipt for the package.
At some time between March 3, 2006 and May 17, 2006, plaintiffs retained their current lawyer.*fn1 Thus, by mid-May 2006, and perhaps even earlier, plaintiffs and their counsel were actively at work preparing a motion to vacate the dismissal, as evidenced by each plaintiff having signed on May 17, 2006 a certification in support of the motion, filed on May 26, 2006, to vacate the dismissal.
Notably, the certifications submitted by plaintiffs in support of their May 29, 2006 motion to vacate the dismissal made no reference to any outstanding discovery that the judge had warned must be provided to avoid a dismissal with prejudice; to any effort currently underway to comply; or to having provided even a small amount of the outstanding discovery. Plaintiffs did not offer, in their briefs or in their certifications, any exceptional circumstances as a justification for their continued non-compliance with discovery.
Although Ford never alluded to it in his May 17, 2006 certification, his attorney argued for the first time during the July 21, 2006 motion hearing that Ford had undergone stomach and back surgery. Even though Ford was present on July 21, neither he nor his attorney provided any information about whether any such surgery occurred before or after the March 3, 2006 order was entered. Nor were any medical reports provided specifying when such surgery occurred. Judge Brock noted during argument of the motions on July 21 that if Ford had a medical problem that interfered with his ability to comply with her March 3, 2006 ...