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Whritenour v. Township of Vernon

July 9, 2008

MICHAEL WHRITENOUR AND CELESTE WHRITENOUR, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF VERNON, POLICE DEPARTMENT OF THE TOWNSHIP OF VERNON, CHIEF KENNETH JOHNSON, AND CHIEF ROY WHERRY, DEFENDANTS-RESPONDENTS, AND KENNETH KUZICKI, PATROLMAN KEITH KIMKOWSKI, SERGEANT ROBERT WALSH, PATROLMAN MICHAEL BURNS, PATROLMAN WILLIAM FISHER, AND PATROLMAN SCOTT WALLECK, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0124-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 7, 2008

Before Judges Sapp-Peterson, Messano and Newman.

Plaintiffs, Michael and Celeste Whritenour, appeal from the February 16, 2007 order dismissing their complaint, with prejudice, against defendants, Township of Vernon, Police Department of the Township of Vernon (Department), Chief Kenneth Johnson, and Chief Roy Wherry. We reverse.

On February 27, 2002, plaintiffs filed a complaint in Superior Court alleging numerous employment-related claims against defendants, including harassment, interference with prospective business advantage and loss of consortium. Defendants propounded discovery demands upon plaintiffs between August 2002 and May 2004. On October 5, 2002, the court dismissed plaintiffs' complaint, without prejudice, against defendants, Patrolman Michael Burns, Patrolman William Fisher, Patrolman Keith Kimkowski, Kenneth Kuzicki, Patrolman Scott Walleck, Sergeant Robert Walsh, and the Department, for lack of prosecution. Plaintiffs have never sought reinstatement of their claims against these defendants.

On May 11, 2004, defendants moved to dismiss plaintiffs' complaint without prejudice until plaintiffs satisfied outstanding discovery demands. The motion was returnable June 1, 2004, and was granted as unopposed. The order dismissing the complaint was without prejudice and provided that (1) plaintiffs were to fully answer defendants' first set of interrogatories and respond to document requests by June 14, 2004; (2) plaintiff Michael Whritenour was to appear for the taking of his deposition on June 22, 2004; and (3) plaintiff Celeste Whritenour was to appear for the taking of her deposition on June 23, 2004. The order provided further that if plaintiffs failed to comply with the order, defendants would be permitted to file a motion to dismiss the complaint with prejudice.

On June 23, 2004, defendants filed a motion to dismiss plaintiffs' complaint with prejudice for non-compliance with the June 1 order. Plaintiffs opposed the motion, and their attorney's certification in opposition to the motion advised the court that completion of discovery was hampered by plaintiffs' adversarial divorce proceedings and their retention of new counsel but that the interrogatory responses and over 1,800 pages of responsive documents had been served upon defendants on July 1, 2004. Additionally, plaintiffs' counsel's certification indicated that defendants were invited "to confer with us to establish a date when they can inspect the balance of our documents now available."

In a letter also dated July 1, 2004 that accompanied plaintiffs' discovery responses, plaintiffs' counsel requested that defendants "[p]rovide us with dates during the month of July for the depositions of the plaintiffs. New counsel is entering the case for plaintiffs. He will coordinate with you directly after the Court rules on defendants' motion to dismiss plaintiffs' complaint with prejudice." On August 2, 2004, defense counsel forwarded a letter to the court advising that "[d]efendants hereby withdraw their pending Motion to Dismiss the Complaint with prejudice, presently returnable on Friday August 6, 2004."

More than two years later, on November 27, 2006, defendants moved to dismiss plaintiffs' complaint with prejudice. In the certification in support of the motion, defense counsel stated:

8. Despite this Court's June 1, 2004 Order compelling plaintiffs to fully answer Defendants' First Set of Interrogatories and fully respond to Defendants['] Document Demands by June 14, 2001, plaintiffs wholly and inexplicably failed to do so.

9. Likewise, plaintiffs wholly and inexplicably failed to appear for their Court Ordered depositions, which were to take place on June 22, 2004 and on June 23, 2004, respectively.

Plaintiffs opposed the motion and their attorney submitted a certification stating: (1) defendants had withdrawn the earlier motion; (2) defendants did not make a good faith attempt to resolve the outstanding discovery issues; and (3) the delay in completing discovery was "eclipsed" by plaintiffs' adversarial divorce proceedings as well as the fact that the "transfer of the matter to another law firm was inhibited by the outstanding June 1, 2004 Order of dismissal without prejudice." How the June 1 order inhibited the transfer of the case to another law firm was not explained in the certification.

On the original return date of the motion, January 19, 2007, after hearing some argument, the court adjourned the matter for two weeks to permit counsel an opportunity to submit supplemental papers "as to where these individually named defendants were . . . . If they're not around it's going to be hard for you to defend the police department." On the next return date, following oral argument, the court dismissed the complaint, reasoning that the two-year delay in reinstating the ...


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