On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, L-2468-02.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 4, 2006
Before Judges Kestin, Payne and Graves.
Defendant, Pegasus Consulting Group, Inc., appeals from an August 26, 2005 judgment of $182,608.43 in favor of plaintiff, Geeta Chakravarti. The judgment included awards for compensatory damages, pre-judgment interest, attorney's fees, and costs. The notice of appeal specifies a particular challenge to an order entered on September 24, 2004, denying defendant's motions: 1) to vacate a September 12, 2003 order striking defendant's answer and dismissing its counterclaim, and 2) to vacate the entry of default on October 21, 2003.
Plaintiff cross-appeals from the judgment to the extent it reflects the trial court's reduction of a counsel fee award by thirty percent of the lodestar fee calculation.
We affirm as to defendant's appeal; and reverse and remand as to plaintiff's cross-appeal.
The complaint, filed July 31, 2002, and amended with leave of court on March 14, 2003, alleged unlawful gender discrimination in employment and retaliation in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42; violation of the standards of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; conversion of plaintiff's salary for the last pay period of her employment and unjust enrichment; and breach of contract. Defendant answered on October 16, 2002, and, in a separate counterclaim filed on November 27, 2002, alleged breach of two employment contracts as well as a separation agreement and release; tortious interference with business relationships and with prospective economic advantages and opportunities; and breach of the duty of fidelity and loyalty.
Plaintiff served her first set of interrogatories and first request for production of documents on defendant under letter of September 10, 2002. In a letter dated December 11, 2002, addressed to defense counsel, Roy D. Ruggiero, Esq., plaintiff's counsel stated that answers to the first set of interrogatories and the documents specified in the first request for production had not been received. The letter requested that discovery, and stated that if responses were not received "in a timely manner" plaintiff would move to suppress the answer and dismiss the counterclaim. On December 13, 2002, plaintiff served her second set of interrogatories and second request for production of documents on defense counsel. Plaintiff's answer to the counterclaim was dated December 17, 2002. On that date, as well, at defendant's request, plaintiff extended the time for replying to the first set of interrogatories and the first request for production of documents until January 16, 2003. Subsequently, plaintiff's counsel granted a second extension of time until January 31, 2003.
On February 14, 2003, plaintiff moved for an order dismissing the counterclaim and striking the answer. The supporting certification stated that no discovery had been provided by defendant. Defendant sought a two-week adjournment of the motion. On April 10, 2003, the trial court granted the relief plaintiff sought without prejudice, see R. 4:23-5(a)(1), and ordered defendant to provide all the discovery within seven days. That order was served on defense counsel by letter of April 21, 2003.
Plaintiff supplied answers to defendant's discovery requests and, in a letter dated May 23, 2003, plaintiff's counsel agreed to extend the time for receipt of the delinquent discovery from defendant until June 9, 2003, i.e., he "agree[d] not to make any motion relative to such discovery until June 9, 2003." The discovery was not received by that date and, on June 24, 2003, plaintiff moved for the entry of default. The motion, initially returnable on July 11, 2003, was postponed; and, on July 25, 2003, it was adjourned, with plaintiff's consent, at defense counsel's request on the basis that he "ha[d] been effectively discharged as counsel to [d]efendant[.]"
Thereafter, plaintiff filed a motion seeking dismissal of the counterclaim and a striking of defendant's answer with prejudice. See R. 4:23-5(a)(2). That motion was returnable on September 12, 2003. On September 11, Mr. Ruggiero requested another adjournment and moved for leave to withdraw as counsel for defendant. On September 12, the trial court entered an order granting plaintiff's motion. On October 10, 2003, the trial court entered an order relieving Mr. Ruggiero as counsel for defendant, but denied the request for a stay of the matter to allow for the retention of substitute counsel. On October 21, 2003, the trial court entered a default pursuant to plaintiff's latest request dated September 29, 2003.
Plaintiff then requested a proof hearing, which was scheduled for March 4, 2004. The day before, Mr. Ruggiero requested a continuance on the basis that he had been discharged months before and had only recently been re-retained. The court granted the request for adjournment, ordering defendant to file a motion to vacate the default by March 31, returnable on April 16, 2004. When, by April ...