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Leitner v. Toms River Regional Schools

April 13, 2007

CHERYL LEITNER AND SANDRA KIPP, PLAINTIFFS-APPELLANTS,
v.
TOMS RIVER REGIONAL SCHOOLS, MRS. FERNANDEZ, MR. AZZDINI, MR. RITTICA AND MR. COHUT, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-684-04.

The opinion of the court was delivered by: Lyons, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 28, 2007

Before Judges Stern, Collester and Lyons.

Plaintiffs, Cheryl Leitner and Sandra Kipp, mother and daughter, sued the Toms River Regional Schools ("TRRS") and various school officials alleging violations of the Law Against Discrimination ("LAD") and the Americans with Disabilities Act ("ADA"). On September 9, 2005, the trial court denied plaintiffs' application to extend discovery. On October 21, 2005, the court granted TRRS' motion to dismiss as to the individual defendants, and on February 8, 2006, the court entered an order for summary judgment in TRRS' favor. Plaintiffs appeal those orders. Because we find the trial court mistakenly exercised its discretion in denying the requested discovery extension, we reverse and remand. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

Plaintiffs filed their complaint on March 3, 2004. The complaint was served on TRRS on April 14, 2004, and an answer was filed by TRRS on June 2, 2004. In the initial complaint, four individuals were named, as were a number of "John Does." The four individuals named were Mrs. Fernandez, Mr. Azzdini, Mr. Rittica and Mr. Cohut. They were referred to in the complaint as "employees and/or supervisors" of TRRS. Plaintiffs attempted service on all four of these individuals by serving TRRS. Counsel for TRRS advised plaintiffs at that time that it would not accept service since it was improper under the Rules and The case was assigned to Track III pursuant to R. 4:24-1(a) and August 26, 2005 was set as the discovery end-date. TRRS served uniform interrogatories as well as supplementary interrogatories on the plaintiffs. Plaintiffs answered the uniform interrogatories on November 11, 2004, but never supplied answers to the supplementary interrogatories. The supplementary interrogatories sought the correct identities of the four individuals named in the complaint, as well as the factual bases for the LAD and ADA alleged violations.

In the interrogatory answers provided to TRRS, plaintiffs identified Mrs. Fernandez as the Intermediate East Middle School cheerleading coach. Mr. Kohut was identified as a teacher who taught plaintiff, and Mr. Azzolini and Mr. Ritacco were identified as supervisors.*fn1

Plaintiffs received over 450 pages of documents from TRRS voluntarily in November 2004 in preparation for court ordered mediation. The mediation was never conducted. TRRS deposed plaintiffs on February 3, 2005. In February 2005, during plaintiffs' deposition, the individual referred to as Mr. Rittica in the complaint was identified as Mr. Ritacco and his position as that of superintendent. The individual referred to as Mr. Azzdini in the complaint was identified as Mr. Azzolini and was said to be a principal. The individual referred to as Mr. Cohut in the complaint was identified as Mr. Kohout and he was named as plaintiffs' biology teacher.

On June 9, 2005, plaintiffs' counsel wrote to TRRS' counsel and asked that counsel provide the addresses of the individuals named in the complaint and employed by TRRS so that plaintiff could serve them. Counsel referred to an earlier conversation between them held at the February deposition. Plaintiffs' counsel also asked TRRS' counsel to provide available dates and times for the depositions of the individuals named in the complaint and a TRRS representative as soon as possible. On June 13, 2005, TRRS' counsel responded by letter. Counsel stated that plaintiffs' counsel never forwarded any information regarding the correct identity of the individuals sought to be served, nor did plaintiffs' counsel amend his pleadings to correctly name the individuals alleged to be involved. He pointed out that plaintiffs' counsel did not serve any interrogatories or notices to produce on TRRS. Counsel also pointed out in the letter that plaintiffs had not taken any significant action in the matter since the February deposition.

Counsel concluded by saying he was not going to try to guess at the identity of the individuals and that since the discovery end-date was August 26, 2005, he would not consent to an amendment of the pleadings or to a deposition schedule.

On August 3, 2005, pursuant to R. 4:24-1(c), plaintiffs filed a motion to extend discovery. The motion was filed returnable on August 19, 2005.*fn2 There was no arbitration or trial date set at that time.

On the return date of the motion, plaintiffs argued that good cause was shown for the extension, since there would be prejudice to plaintiffs who did not yet have the correct full names of the individual defendants and there was a need to conduct further discovery to obtain those names as well as to ascertain additional facts critical to their suit. Plaintiffs also argued that while "good cause" needs to be shown for the extension under R. 4:24-1(c), the rule allows a sixty-day extension by consent of all counsel without any reason whatsoever and, therefore, the standard for good cause should be flexible. Plaintiffs' counsel further argued that good cause was shown in this matter by the refusal of TRRS' counsel to provide addresses for service and, more importantly, by his refusal to voluntarily schedule depositions of the individual defendants, as well as a representative of the school district.

TRRS' counsel argued that this was a matter for the court's discretion, and that given the lack of diligence in pursuing discovery on plaintiffs' part, the court should not extend discovery.

The court found there was no good cause shown and no diligent effort made by plaintiffs' counsel in pursuing discovery and, therefore, denied the extension. On October 4, 2005, TRRS' counsel filed a motion to dismiss plaintiffs' complaint as to "improper parties, fictional defendants." TRRS' counsel pointed out that service had not been made with respect to these defendants and that there had been no amendment to the complaint to correctly designate them.

In response to TRRS' motion, plaintiffs' counsel moved to amend the complaint and to have the claims against the individuals relate back under R. 4:9-3. After oral argument, the court concluded that plaintiffs' motion to compel TRRS to provide the names and addresses of the four individuals would violate the court's earlier order denying an extension of discovery and that plaintiffs failed to demonstrate the individual defendants knew of the complaint, either actually or constructively, before the expiration of the statute of limitations in June 2004, and noted the lack of effort made by plaintiffs' counsel in discovery to ascertain the individual defendants' names. Accordingly, the court entered an order granting the motion to dismiss as to the individual defendants.

On January 20, 2006, the trial court heard TRRS' motion for summary judgment and granted same by way of an order dated February 8, 2006. The court primarily relied on findings that the accommodations plaintiffs contended were denied them were clearly linked with the Individuals with Disabilities Education Act ("IDEA"), which, requires exhaustion of administrative remedies as a condition of the suit. The court noted that the substance of plaintiffs' complaint, while labeled LAD and ADA claims, are IDEA allegations, and plaintiffs failed to exhaust their administrative remedies. The court further found that defendant justifiably relied upon plaintiffs' failure to challenge the individual education plans entered into pursuant to law.

On appeal, plaintiffs present the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' FILED REQUEST TO EXTEND THE DISCOVERY PERIOD NOR NINETY DAYS FOR THE ...


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