On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-3526-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Weissbard.
Plaintiff, Devin V. Perdue, appeals from the dismissal of his complaint against defendant Pompton Care, LLC d/b/a Arbor Glen Rehabilitation Center, primarily alleging violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We affirm.
The relevant history is largely procedural. Plaintiff filed suit on April 29, 2005. His complaint asserted LAD claims based on race discrimination/hostile work environment, unlawful retaliation, and aiding and abetting liability, as well as causes of action for intentional and/or negligent infliction of emotional distress. On November 29, 2005, defendants moved, pursuant to R. 4:23-5(a)(1), for dismissal without prejudice based on plaintiff's failure to respond to discovery requests. The motion was supported by a certification of defendant's attorney, as follows:
4. By Order dated June 27, 2005, this matter was referred to mediation, and Jenny A. Puchta was appointed as the mediator.
5. On July 6, 2005, Mediator Puchta contacted the Parties and arranged for an organizational telephonic conference for July 13, 2005.
6. Due to a scheduling conflict, the telephonic conference was rescheduled for July 15, 2005 at 11 a.m.
7. on July 15, 2005, Counsel for the Parties participated in the telephonic conference, during which the Parties agreed to pursue abbreviated discovery, including a mutual exchange of requests for the production of documents and the deposition of the Plaintiff. The Parties further agreed that they would complete this abbreviated discovery on or about September 15, 2005, and tentatively scheduled Plaintiff's deposition for September 15, 2005. Counsel for Plaintiff represented during the call that he was departing for vacation in August, but that if Defendant served his client with a request for the production of documents within the next couple of weeks, he would respond to the requests before he departed for his vacation. Mediator Puchta scheduled the initial mediation session for September 29, 2005. Mediator Puchta faxed the Parties a letter dated August 2, 2005 memorializing the foregoing schedule. A copy of the Mediator's August 2, 2005 letter is attached hereto as Exhibit A.
8. On July 15, 2005, following the telephonic conference, Defendant served Plaintiff by facsimile with a letter requesting the production of documents. Defendant requested that Plaintiff produce responsive documents before counsel departed for his August vacation, so that Defendant would have sufficient time to review the documents before Plaintiff's deposition, which was tentatively scheduled for September 15, 2005. Defendant confirmed its availability for the Plaintiff's deposition on September 15, 2005, and sought Plaintiff availability for this date. A copy of Defendant's July 15, 2005 letter requesting the production of documents is attached hereto as Exhibit B.
9. On August 23, 2005, Defendant served Plaintiff with a copy of the Order admitting Messrs. McGuire and Long pro hac vice. In the cover letter submitted with the Order, counsel for Defendant indicated that they had not heard back from Plaintiff regarding the document requests contained in their July 15 letter or Plaintiff's availability for deposition on September 15, 2005.
Counsel for Defendant once again requested that Plaintiff provide a response to Defendant's document requests as soon as possible, but no later than September 1, 2005. A copy of Defendant's August 23, 2005 letter is attached hereto as Exhibit C.
10. Having not heard from Plaintiff, on August 25, 2005, counsel for Defendant called counsel for Plaintiff at his office but got no answer. Counsel for Defendant, however, left a voice mail message for Plaintiff's counsel asking him to call as soon as he received the message to discuss the outstanding discovery and deposition date.
11. On August 29, 2005, having still not heard from Plaintiff, counsel for Defendant called counsel for Plaintiff at his office and was told the he was out of the office on vacation until September 6, 2005. Counsel for Defendant, however, left a voice mail message for Plaintiff's counsel asking him to call as soon as he received the message to discuss the outstanding discovery and deposition date.
12. With Plaintiff's deposition tentatively scheduled for September 15, 2005 and having received (a) no communications from Plaintiff since July 15, (b) no response to Defendant's outstanding discovery, and (c) no response to Defendant's phone calls and letter, Defendant sent a letter dated September 1, 2005 to Mediator Puchta advising her of Plaintiff's failure to respond. Defendant also requested that the September 29, 2005 mediation session be adjourned until - per the July 15 agreement - Plaintiff had responded to the outstanding discovery and Defendant had adequate time to prepare and take Plaintiff's deposition. A copy of Defendant's September 2005 letter is attached hereto as Exhibit D.
13. On September 8, 2005, Mediator Puchta called and spoke with counsel for Defendant in response to their September 1 letter. Mediator Puchta advised counsel that she was adjourning the September 29 mediation session and that she was going to request that the Court extend mediation for an additional 90 days. Mediator Puchta further advised counsel that she unsuccessfully tried to reach counsel for Plaintiff by telephone on September 8, but left a message for him requesting his timely cooperation in responding to the outstanding discovery and providing his client's availability for deposition. Mediator Puchta also requested that Plaintiff serve Defendant with his discovery requests, as the Parties also had agreed during the July 15 telephonic conference. Mediator Puchta sent Defendant a facsimile memorializing her response to Defendant's September 1 letter and the September 8 telephone call. A copy of Mediator Puchta's September 8, 2005 facsimile is attached hereto as Exhibit E.
14. On September 19, 2005, counsel for Defendant faxed Mediator Puchta a letter advising her that since her September 8 letter, Plaintiff's counsel still had not contacted Defendant, and still had not responded to any of the outstanding discovery, nor provided Defendant with any discovery of his own. Counsel further advised Mediator Puchta that Defendant was considering seeking judicial intervention to resolve these issues. A copy of Defendant's September 19, 2005 letter is attached hereto as Exhibit F.
15. On September 28, 2005, counsel for Plaintiff finally called and spoke with counsel for Defendant, and indicated that he was working on his responses to Defendant's outstanding discovery and asked that he be given an additional week or two to respond and schedule the deposition of his client.
Counsel for Defendant informed Plaintiff's counsel that they would take his request under advisement and respond shortly.
16. On October 5, 2005, counsel for Defendant faxed Plaintiff a letter agreeing to give him until October 15 to provide Defendant with his responses to the outstanding discovery. Defendant informed Plaintiff that if it did not receive a response to its discovery requests by October 15, 2005, Defendant would file an appropriate motion with the Court without any further attempts to resolve the issue. A copy of Defendant's October 5, 2005 letter is attached hereto as Exhibit G.
17. On October 15, 2005, Plaintiff's counsel called counsel for Defendant and advised that he would be serving his outstanding responses within a day or two.
18. Since October 15, 2005, Defendant has not received any response to its outstanding discovery or received a request for available dates for plaintiff's deposition. Despite Defendant's repeated attempts to get Plaintiff to comply with his discovery obligations ...