On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County, Docket No. L-5921-05.
The opinion of the court was delivered by: RODRÍGUEZ, A. A., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and Waugh.*fn1
St. James AME Development Corporation (St. James) sued the City of Jersey City (City) on a breach of contract cause of action. The City answered, denying the allegations, and seeking discovery. The City served a notice to produce documents, demand for admissions and interrogatories. This case was assigned to track four, which allows 450 days for discovery. The end date for discovery was May 3, 2007.
The answers to interrogatories were due from St. James no later than February 22, 2007. St. James did not comply. Pursuant to Rule 4:23-5(a)(1), the City moved to dismiss the complaint without prejudice for St. James' failure to answer interrogatories or provide discovery. St. James did not oppose the motion. Therefore, the motion was granted. The judge entered an order on April 13, 2007, dismissing the complaint without prejudice for failure to answer interrogatories or provide discovery. However, contrary to its terms, a copy of the order was never served upon St. James.
Whenever 60 days had passed and there was still no compliance with the City's discovery request, the City moved to dismiss the complaint with prejudice, pursuant to Rule 4:23-5(a)(2). Before the return date, St. James provided the City with discovery, and St. James's counsel certified that all of the City's discovery demands had been satisfied. St. James cross-moved for restoration of the complaint.
Despite the posture of the discovery issue, because the discovery was not provided within 60 days of the order dismissing without prejudice, the judge dismissed the complaint with prejudice and denied St. James's application to reinstate the complaint.
On appeal, St. James contends that the motion to dismiss with prejudice should have been denied because: (1) the City did not comply with the terms of the April 13, 2007 order that a copy be served upon St. James; and (2) fully responsive answers had been provided and a motion to restore was pending. We agree with both contentions and reverse, concluding that the failure to serve the April 13, 2007 order, and the fact that discovery had been provided, precluded the entry of a dismissal with prejudice.
As for the failure to serve the April 13, 2007 order, we find this failure defeats the subsequent motion to dismiss with prejudice. Rule 1:5-1(a) provides that "[t]he party obtaining an order or judgment shall serve it as herein prescribed within 7 days after the date it was signed unless the court otherwise orders therein." The April 13, 2007 order here similarly required a copy to be served upon all parties within seven days of its signing. "The purpose of a notice requirement is to apprise a party of some fact that he or she has a right to know and that the communicating party has a duty to communicate." America's Pride Constr. v. Farry, 175 N.J. 60, 63-64 (2002).
Here, the failure to serve the April 13, 2007 order deprived St. James of knowing that its complaint had been dismissed without prejudice and, more importantly, that it was facing a dismissal with prejudice. Furthermore, we have held that Rule 1:5-1, as a rule of general applicability, is a mandatory requirement. Farrell v. TCI, 378 N.J. Super. 341, 354 (App. Div. 2005).
As for the order dismissing with prejudice, it is a tenet of our jurisdiction that resolution of disputes on the merits are to be encouraged rather than resolution by default for failure to comply with procedural requirements. The Trust Co. of N.J. v. Sliwinski, 350 N.J. Super. 187, 192 (App. Div. 2002) (citing Aujero v. Cirelli, 110 N.J. 566, 573-74 (1988)). Rule 4:23-5 advances this goal, while affording an aggrieved party a remedy to compel production of the outstanding discovery and the right to seek final resolution through a dismissal process. Sullivan v. Coverings & Installation, Inc., ___, N.J. Super. ___, ___ (App. Div. 2008) (Slip op. at 14).
Whether to grant or deny a motion to reinstate a complaint lies within the sound discretion of the trial court. Sullivan, supra, ___ N.J. Super. at ___ (Slip op. at 9); Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22-23 (App. Div. 2007) (citing Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 517 (App. Div. 1983), certif. denied, 97 N.J. 581 (1984)). We will "decline to interfere with [such] matter of discretion unless it appears that an injustice has been done." Cooper, supra, 391 N.J. Super. at 23 (quoting Comford, supra, 198 N.J. Super. at 517). Pursuant to Rule 4:23-5, there is a two-step process for dismissing a complaint for failure to answer ...