April 30, 2008
ANTHONY GIACOBBI, PLAINTIFF-APPELLANT,
MIDSTATE HYE, NJ, LP AND OFFICE MAX, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. L-5349-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Wefing and Parker.
Plaintiff appeals from a trial court order dismissing his complaint with prejudice. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Plaintiff sued for damages, alleging that on June 1, 2005, he tripped and fell in a hole on the sidewalk. He suffered a trimalleolar fracture of his right ankle which required surgical reduction. The accident occurred in front of an Office Max store; three employees of that store stated that they witnessed the accident. They said it occurred as plaintiff was riding on a skateboard which was being pulled by his dog. That factual dispute is not material to our resolution of this appeal.
Plaintiff filed his complaint on July 21, 2005. Defendants are Office Max and the owner of the shopping complex in which the Office Max store is located. According to the record before us, there has been minimal discovery. The parties did exchange answers to interrogatories, and the trial court entered an order in August 2006 compelling plaintiff to submit to a medical examination. We infer from the record that plaintiff complied with that order because there is nothing to indicate he did not. The trial court also entered an order in August 2006 compelling plaintiff to submit to a deposition. In response to that order, plaintiff's original attorney called defendant's attorney and asked if he would adjourn the deposition in light of the fact that plaintiff was retaining new counsel. Defendant's attorney agreed to do so.
When plaintiff did not immediately arrange for a new attorney, his original attorney filed a motion returnable in November 2006 to be relieved as counsel. The trial court entered an order relieving that attorney as counsel but included in the order a provision that the attorney remain on the case for the next sixty days solely for the purpose of receiving and transmitting communications to plaintiff. At the end of that sixty-day period, plaintiff had still not retained a new attorney, and in January defendant moved to dismiss the case with prejudice. In its motion papers, defendant contended it was entitled to this relief for a failure to prosecute, citing Rule 4:37-2, and a failure to comply with previous court orders, citing Rule 4:23-2.
The motion was originally returnable on February 16, 2006, but was carried until March 2 because the trial court wanted plaintiff to appear in person. Plaintiff did appear before the court on March 2, by which time he still had not retained an attorney. The trial court spoke to plaintiff at length on the record, telling him that it would again carry until March 30 the motion to dismiss his case. The trial court explained to plaintiff that by March 30, he had to have retained an attorney and that attorney had to have contacted the two defense counsel and explained how the outstanding discovery issues would be resolved. The trial court told plaintiff that if both those steps did not occur by March 30, his complaint would be dismissed with prejudice.
On March 27, plaintiff's present counsel sent to the original attorney a substitution of attorney, asking that it be executed and returned. On March 30, present counsel forwarded by mail to defense counsel an unexecuted copy of the substitution. On April 4, defense counsel forwarded a copy of the trial court's order of March 30, dismissing the complaint with prejudice. This appeal followed.
Plaintiff stresses on appeal that the sanction of a dismissal with prejudice should be used only as a last resort.
The dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious. Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault. [Abtrax Pharmaceuticals, Inc. v. ElkinsSinn, Inc., 139 N.J. 499, 514 (1995) (citations and internal quotation marks omitted).]
Plaintiff asserts that if he had a few more hours, he would have been able to comply with the March 30 deadline. Defendant Office Max, on the other hand, stresses that under Rule 4:37-2 a trial court may dismiss a matter for failure to comply with an order and may give the same relief under Rule 4:23-2 for failure to permit discovery.
Having reviewed this record, we are satisfied that neither rule authorizes a dismissal with prejudice under the circumstances present in this matter. The record presented to us includes two discovery orders, one directing plaintiff to appear for a medical examination and one ordering his deposition. As we have noted, there is no indication in the record that plaintiff did not appear for the scheduled medical examination, and counsel for defendant Office Max agreed to adjourn plaintiff's deposition. There was no subsequent order ever entered compelling his deposition, and thus plaintiff was not in violation of any outstanding discovery orders.
Defendant Office Max contends that plaintiff's failure to obtain new counsel and work out the outstanding discovery problems by March 30 warranted the trial court's dismissal of this matter with prejudice. We disagree. If a litigant has not obtained new counsel after the original attorney has been granted leave to withdraw, the appropriate relief is not to dismiss the matter with prejudice but to direct that plaintiff thereafter proceed pro se. In doing so, of course, plaintiff must comply with the appropriate court rules and provide discovery. If an order had been entered compelling discovery by a certain date and plaintiff had failed to comply with that order, dismissal would be appropriate. That, however, is not what occurred in this matter.
The trial court, in its oral opinion, stated that in addition to plaintiff's failure to retain new counsel, the matter was being dismissed with prejudice because it had earlier been dismissed without prejudice for failure to provide discovery and more than ninety days had elapsed without the discovery violation being cured and the matter restored to the calendar. According to the record presented to us, while there was an order entered calling for plaintiff's deposition, the attorney agreed to adjourn that deposition. We have no indication that the matter was dismissed without prejudice for plaintiff's failure to be deposed. In that posture, Rule 4:23-5(a)(2) is inapplicable.
We note for the sake of completeness that plaintiff did not contend to the trial court that dismissal was not warranted for his failure to retain new counsel and that by proceeding directly with an appeal rather than with a motion for reconsideration, plaintiff deprived the trial court of the opportunity to consider his late entrance into the matter. We also note the time and attention the trial court gave to this matter in plaintiff's appearance on March 2, and the pains the trial court took to ensure that plaintiff understood the deadlines he faced.
The order under review is reversed, and the matter is remanded to the trial court for further proceedings.
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