February 19, 2008
CLIFFORD PATTERSON, PLAINTIFF-APPELLANT,
EXXONMOBIL CORPORATION, JOHN THOMAS, DAVID SILVA, KEN ESTES, KEN SADLER, JOSEPH FIERKO, PAT DESHAW, KEN TOOMEY, ROBERT PENDARVIS, RAY DORRELL, BRUCE THOMPSON, CHARLIE WARD, AND MARTIN STOCK, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1923-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges Lintner and Sabatino.
Plaintiff Clifford Patterson appeals the Law Division's dismissal with prejudice of his complaint alleging discrimination by his former employer and several of his former co-workers. The court dismissed the complaint because of plaintiff's persistent failure to comply with discovery orders, despite having been given numerous opportunities to do so. In particular, plaintiff violated repeated orders to produce written transcriptions of forty-eight audiotapes that he had secretly made of his co-workers' conversations, tapes which he portrayed as containing pivotal evidence of the alleged discrimination. We affirm.
In 1977 plaintiff began working for a predecessor company of defendant ExxonMobil Corp. ("Exxon") in Paulsboro. He worked there in the maintenance department as a welder and mechanic. Plaintiff, who is white, alleges that, while he was working at the Paulsboro facility, he became the object of "racially discriminatory behavior" such as "pranks, jokes, and games" directed at him by several co-workers. The co-workers, who are also white, were individually named as defendants in plaintiff's complaint along with defendant Exxon.
Plaintiff alleges that the discriminatory behavior began in 1992. He contends it intensified in 1994, when plaintiff communicated to the facility's management his perception that qualified black and Hispanic employees were being passed over for promotions in favor of white employees who appeared to be less qualified. In particular, plaintiff contends that he supported fellow employee John Lyles's*fn1 filing of a grievance action against the company. Plaintiff further alleges that he confronted his supervisor, defendant Martin Stock, about racially-motivated hiring practices.
As a result of his support for his minority co-workers, plaintiff maintains that he was continually harassed by his white co-workers. He alleges that the individual defendants used "obscene and profane language" towards him, engaged in "retaliation . . . in the form of publicly humiliating" him, and subjected him to "extremely pornographic materials designed to offend and upset him." He also claims that, despite filing grievance claims with his union representative, nothing was done to correct the situation.
As a consequence of the alleged workplace harassment, plaintiff claims that he suffered "severe and acute emotional and psychiatric distress." Eventually, plaintiff had a mental "break down" and was placed on authorized medical disability leave from October 2000 through August 2001. During this period, plaintiff received treatment for his ailments.
When he returned to work in the latter part of 2001, plaintiff claims that "the harassment, intimidation, and retaliation by the defendants intensified." He asserts that he complained to supervisors, including the plant manager, but the perceived offenders were not disciplined and conditions deteriorated. Plaintiff was placed on a second medical leave in April 2002 and remained on leave when he filed his complaint in the Law Division six months later.
About one month after plaintiff returned to his job in August 2001, he began secretly recording his co-workers' conversations. He did this by strapping a microcassette recorder to his ankle. Between September 2001 and May 2002, plaintiff recorded forty-eight audiotapes of his co-workers' conversations. Plaintiff asserted that these tapes contained proof of his claims against defendants.
Plaintiff filed his complaint against defendants in the Law Division on October 18, 2002, alleging violations of the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and the common-law tort of intentional infliction of emotional distress. After defendants briefly removed the action to the federal district court, the case was remanded back to the Law Division in May 2003.
As part of the initial discovery, plaintiff provided defendants with copies of the forty-eight audiotapes in April 2003. Defendants then retained a certified reporting service, Brittany Transcription ("Brittany"), to transcribe a sample of the tapes to determine if they were audible. Accordingly, Brittany transcribed about seven pages of a conversation that took place between plaintiff and various co-workers in August 2001. This sample conversation contained nothing of a discriminatory character. According to defendants, Brittany informed them that, although "substantial portions" of the tapes were audible, there were large portions that were of poor quality. The transcriber advised that, without the assistance of someone who was present for these conversations, it was impossible to ascertain who was speaking at any given time.
Upon learning of these impediments from their own transcriber, defendants requested the trial court to order plaintiff to bear the burden of having the tapes transcribed. According to defendants, the court in a telephone conference agreed to require plaintiff to produce such transcriptions, although the case management order issued on September 30, 2005 did not specify that obligation.
Plaintiff failed to produce the transcriptions, as well as certain other discovery that had been sought by defendants. Defendants consequently moved to compel discovery. Their motion resulted in a discovery order issued on December 2, 2005. Among other things, this order specifically required plaintiff to "provide copies of all documents responsive to [defendants'] discovery requests, deficiency letter and tape logs, within [twenty] days . . . ."
However, rather than providing defendants with a certified transcription of the tapes, plaintiff's counsel instead produced over one hundred pages of what he purported were "[w]ritten notes from [p]laintiff detailing information on tapes." These handwritten "notes" apparently set forth only excerpts from the tapes, rather than the entirety of their contents. Sprinkled throughout the notes were plaintiff's own typed summaries, explanatory statements, and personal opinions.
As a result of plaintiff's failure to provide transcriptions of the tapes from a certified transcriber, defendants moved in February 2006 to dismiss the case under R. 4:23-5(a)(1) for failure to provide discovery, for sanctions, and, alternatively, for summary judgment as to the individual defendants. In opposing the dismissal of his lawsuit, plaintiff attested to the court that the tapes "contain important information concerning the various allegations set forth in the complaint against . . . [d]efendants."
At the motion argument on March 31, 2006, plaintiff's counsel maintained that there was no outstanding court order requiring the transcription of the tapes. Counsel represented that plaintiff would provide transcriptions if the court deemed it necessary. Counsel also informed the court that plaintiff would "[p]ossibly" seek to play the tapes to the jury at trial. In response, the judge told plaintiff's counsel, "we're four years into this litigation. And we still don't have a clue about anything except what your client thinks is going on . . . ." The judge admonished plaintiff's counsel to "[f]igure [his] case out." Nonetheless, the judge denied defendants' request to dismiss the complaint at that point because discovery was still incomplete.
The court then issued another case management order on April 7, 2006. The order required that plaintiff provide defendants with transcriptions of the tapes by May 1, 2006. The order also set forth various other discovery deadlines.
Once again, plaintiff did not produce any transcriptions. Defendants therefore moved again to dismiss the complaint. In response to that motion, plaintiff's attorney sent a letter to defense counsel on June 21, 2006. Among other things, plaintiff's counsel's letter informed his adversary that:
[D]ue to such factors as the extremely poor sound quality of the tapes and various background noises which greatly interfere with the ability to accurately determine what each individual is saying, and despite the best efforts of our office . . . we have, reluctantly, determined that we will be unable to utilize these tapes in connection with this matter.
The letter also asserted that "the issue concerning the production of certified transcripts of these tapes is now moot."
Following this correspondence, the court granted defendants' motion for relief under R. 4:23-5(a)(1) on June 23, 2006. The order dismissed plaintiff's case without prejudice, for failure to abide by a court order and for failure to provide discovery.
After ninety days had elapsed, pursuant to R. 4:23-5(a)(2), defendants moved in October 2006 to convert the dismissal into one with prejudice. Plaintiff subsequently cross-moved to reinstate the complaint. Oral argument on those motions took place on November 17, 2006.
At that argument, plaintiff's counsel admitted that, despite his earlier assertions that the tapes contained important evidence for his case, he had only recently listened to the tapes for the first time. When he did finally listen to the tapes, plaintiff's attorney realized that they did not contain the inculpatory evidence he had expected in them. He thus told the judge, "we will not rely on anything contained in these tapes." Instead, plaintiff's counsel asserted that his client's case "is going to have to rest on the discovery that's been provided." In that regard, he claims to have provided the defense with over one thousand pages of documents, and that he received more pages than that from the defense.
Defendants' counsel asserted that the tapes were, in fact, largely audible, and were capable of being properly transcribed so long as there was appropriate assistance in identifying the voices heard on the tapes. He further argued that plaintiff was too late in filing his motion to reinstate. He maintained that plaintiff had shown neither compliance with the court's discovery order, nor exceptional circumstances, to warrant reinstating the complaint under R. 4:23-5(a)(2).
In addressing these motions initially at the November 2006 hearing, the trial judge observed that "the principle difficulty [in the case] has been the lack of responsiveness of plaintiff's present counsel to relatively routine discovery requests." The judge admonished plaintiff's counsel for being unprepared, stating to him that "I really think you need to spend more time being timely in understanding the issues that are being presented, and moving forward in a more efficient manner."
Even so, the judge held that plaintiff's failure to transcribe the tapes did not yet warrant the sanction of dismissal with prejudice. The judge thus denied defendants' application and reinstated plaintiff's complaint. She further vacated the order requiring plaintiff to transcribe the tapes. The judge did keep in place the original discovery end date of October 15, 2006, which had already passed one month earlier, as neither party had requested to extend it.
Defendants moved for reconsideration. Their argument emphasized that the tapes were not undecipherable and inaudible. This was evidenced by plaintiff's own unprofessional effort to transcribe them, as well as the partial transcription done at defendants' request by Brittany. Defendants also renewed their contention that plaintiff had not made the showing of exceptional circumstances required under the Court Rules to reinstate the complaint.
In response, plaintiff's counsel maintained that the exceptional circumstance that should excuse his discovery delinquency was the fact that the tapes that he expected to be central to plaintiff's case turned out, in his opinion, to be worthless. He asserted that he had "naively relied on what our client had said was on [the tapes]," and that "events . . . developed that really changed the course of the case." He informed the court that, even though he did not intend to use the tapes, he had no objection to defendants using material on the tapes in their defense.
Upon hearing the matter further on January 26, 2007, the judge reversed her earlier decision and dismissed plaintiff's complaint with prejudice. In so granting reconsideration in favor of the defense, the judge observed that "there has essentially been no discovery" in the case. She remarked that "the whole purpose of discovery is for each side to learn the evidence upon which the other relies," and that "[i]t would be an improper use of a trial for parties to learn for the first time what the evidence is."
The judge ultimately was not satisfied that plaintiff had demonstrated exceptional circumstances to justify his non-compliance. Given plaintiff's long history of discovery failures, as well as the belated manner in which he had recanted his reliance upon the tapes as supposedly pivotal evidence, the judge ruled that the discovery violations could not be tolerated any longer. The lawsuit was thus dismissed with prejudice, and this appeal followed.
Plaintiff first argues that the motion judge should not have reconsidered her November 2006 decision to reinstate his complaint. He argues that the November 2006 ruling had neither overlooked key evidence, nor was it arbitrary, capricious, or unreasonable. Defendants reply that the judge was well within her discretion to reconsider the earlier ruling. They contend that the judge was entitled to change her mind, given that the tapes were indeed decipherable, a fact which the judge had initially overlooked. Defendants also cite the omission of the controlling legal standard of "exceptional circumstances" from the judge's November 2006 analysis.
Pursuant to R. 4:49-2, a motion for reconsideration must "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." When reviewing a court's decision on a motion to reconsider, this court applies an abuse of discretion standard. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). "Reconsideration is a matter within the sound discretion of the [c]court, to be exercised in the interest of justice."
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). The court in D'Atria explained that:
Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence. Said another way, a litigant must initially demonstrate that the [c]court acted in an arbitrary, capricious, or unreasonable manner, before the [c]court should engage in the actual reconsideration process. [Ibid.]
The motion judge acted well within her zone of discretion in finding that the grounds for reconsideration required by R. 4:49-2 and D'Atria were met in this case. The judge characterized defendants' motion to reconsider as based "principally [on] the reason that the plaintiff should be required to demonstrate exceptional circumstances in order to support [his] untimely application." For the reasons that we discuss, infra, no such exceptional circumstances exist here. Second, the defendant's transcription of a sample of the audiotape and plaintiff's ensuing self-styled attempt to transcribe the tapes himself, albeit in an unprofessional manner, were not new evidence presented for the first time on reconsideration. Rather, these items were simply aspects of the record that the judge had not fully appreciated in her initial ruling. We shall not disturb the judge's conscientious reassessment and her ultimate change of mind.
Plaintiff's second claim on appeal is that the judge erred in dismissing his complaint for failure to conduct discovery. Plaintiff argues that, contrary to the judge's perception, extensive discovery had been exchanged and, furthermore, that he had exceptional circumstances for not complying with discovery orders. On the other hand, defendants maintain that plaintiff's persistent discovery violations, especially as to the untranscribed audiotapes, prejudiced their ability to defend the case.
Here again, our standard of review is limited. "A decision declining to reinstate a complaint dismissed for non-compliance with discovery obligations lies within the discretion of the trial court." Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22 (App. Div. 2007). A decision to dismiss on discovery grounds will only be overturned upon a showing of abuse of discretion. Id. at 23. This court should not intervene, "'unless it appears that an injustice has been done.'" Ibid. (quoting Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 517 (App. Div. 1983), certif. denied, 97 N.J. 581 (1984)).
Defendants' motions for dismissal in this case were brought under R. 4:23-5. The Rule mandates a two-step process for dismissing complaints on the basis of a litigant's failure to comply with discovery requirements. First, If a demand for discovery . . . is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to the discovery may . . . move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. . . . Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice.
In the second step of this process,
If an order of dismissal or suppression without prejudice has been entered . . . and not thereafter vacated, the party entitled to the discovery may, after the expiration of 90 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. . . . The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.
However, "[t]he delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice."
R. 4:23-5(a)(1)(emphasis added).
The requirements to reinstate a complaint within ninety days after it has been dismissed without prejudice under subsection (a)(1) of the Rule are much less stringent than what is required to survive a motion for dismissal with prejudice under subsection (a)(2) after those ninety days have run. See Suarez v. Sumitomo Chem. Co., 256 N.J. Super. 683, 688-89 (Law Div. 1991). In fact, that latter stage of the Rule is only reached if a party has persistently disregarded its discovery obligations. Ibid.
Once a motion to dismiss with prejudice is filed, a delinquent party can only survive a dismissal with prejudice by either fully complying with the discovery requirement or showing "exceptional circumstances" for not doing so. R. 4:23-5(a)(2); Adedoyin v. Arc of Morris County Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999) (finding that "'exceptional circumstances' . . . must be shown to avoid a dismissal with prejudice for any failure to answer that has continued more than ninety days after the dismissal without prejudice").
The procedural framework of R. 4:23-5 thus strongly encourages litigants to fulfill their discovery obligations before reaching the stage of dismissal with prejudice. As Suarez explained, "it would be most unwise, to say the least, for counsel to fail to act within the [ninety] day period on the expectation that a successful response could be made to the 'with prejudice' motion." Suarez, supra, 256 N.J. Super. at 689.
Our case law demonstrates that the category of circumstances qualifying as "exceptional" for these purposes is narrow. In Suarez, the court determined that exceptional circumstances include "external" constraints on discovery compliance, "such as poor health or emergency." Ibid. By contrast, attorney inattentiveness does not qualify as an exceptional circumstance to survive a dismissal with prejudice under R. 4:23-5(a)(2). For example, in Cooper, supra, 391 N.J. Super. at 24, this court found no exceptional circumstances arising out of the asserted carelessness of plaintiffs' first attorney, where plaintiffs had already retained new counsel before their complaint was dismissed without prejudice, and were given clear instructions by the judge on how to reinstate their claim. Likewise, in Leon v. Parthiv Realty Co., 360 N.J. Super. 153, 155 (App. Div. 2003), we declined to vacate a dismissal with prejudice where the plaintiff never responded to any discovery demands or motions until after the case was dismissed with prejudice. In particular, we were not persuaded by plaintiff counsel's claim that his clients had moved to Mexico and could not be located. Ibid.
Here, plaintiff made absolutely no attempt within the ninety days following dismissal without prejudice to reinstate the complaint. He never complied with the trial judge's outstanding order, dating back to April 2006, to transcribe the tapes. Nor did he make an application to the court to vacate that order because of any impossibility. Plaintiff simply did nothing until ninety days had passed from the June 2006 order, after defendants had already moved to dismiss the case with prejudice. The long-standing inaction of plaintiff remains unjustified.
Plaintiff's counsel submits that the exceptional circumstance here arises from the fact that the tapes his client recorded of his co-workers were of such poor quality as to be "virtually impossible" to transcribe. He further emphasizes that what he thought was crucial evidence turned out to be worthless. These excuses, even if they are assumed to be true for the sake of argument, fall far short of "exceptional." If plaintiff's counsel had listened to the tapes upon receiving them, or promptly sought to transcribe them in a professional manner, he would have known early in the case that he could not use them to prove wrongdoing, thus avoiding a lengthy discovery impasse. The motion judge rightly sanctioned such dilatory behavior.
Plaintiff also argues that, even if there were no "extraordinary circumstance" justifying his failure to transcribe the tapes, the issue should be moot because he no longer intends to rely on the tapes in his case in chief. Significantly, that argument does not account for the possibility that the tapes may contain exculpatory evidence beneficial to defendants, and that plaintiff, as the person who made the tapes, is in the best position to identify the speakers and place the conversations into context.
Plaintiff further argues that his case should be allowed to go forward based on the other discovery exchanged, which he characterizes as "extensive." The motion judge, on the other hand, found that "there has essentially been no discovery." As we have not been provided with any index or description of the discovery provided by plaintiff, we are not in a position to second-guess the judge's assessment. Even if plaintiff could now show that the discovery was more substantial than the motion judge had thought, that alone would not warrant a reversal.
The motion judge showed enormous leniency and patience towards plaintiff as he repeatedly failed to move this case forward. Despite rigorous motion practice, the judge twice refused to dismiss plaintiff's complaint and refused to grant defendants summary judgment. At each of those hearings, the judge, even while ruling in favor of plaintiff, urged plaintiff's counsel to "figure your case out" and "mov[e] forward in a more efficient manner."
Plaintiff could have requested a Driver*fn2 hearing to show that the tapes were, in fact, undecipherable. He could have presented a certification from a transcription service. He could have petitioned the court to vacate its order requiring him to furnish the transcripts prior to the passage of ninety days. Plaintiff did none of these things, but rather at all times waited to act until forced to do so by defendants' motions. Plaintiff should not now be allowed to complain that his inaction was not sufficiently indulged by the court.
In sum, we discern no misapplication of discretion by the motion judge in granting defendants' reconsideration motion and in dismissing plaintiff's complaint with prejudice.
The Law Division's order of January 26, 2007 is affirmed.