On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1828-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Plaintiffs brought this action against their former employer and several of the employer's supervisors for damages arising out of an alleged hostile work environment and wrongful termination in retaliation for making complaints about the hostile work environment. Plaintiffs' complaint was dismissed with prejudice for failure to provide complete answers to interrogatories and completely respond to a demand for production of documents by order or April 11, 2008. On the same date, the court denied plaintiffs' motion to restore their complaint, which had previously been dismissed without prejudice. Plaintiffs' reconsideration motion was denied on May 23, 2008. This appeal followed.*fn1 We conclude that dismissal was not warranted, and we accordingly reverse and remand, directing reinstatement of the complaint and imposition of an appropriate remedy for plaintiffs' discovery deficiencies.
Plaintiffs filed their original complaint on February 9, 2007. The complaint contained four counts alleging hostile work environment and seeking damages for emotional distress and stress-related physical ailments. The complaint alleged that defendants' conduct continued through the time plaintiffs were discharged or incurred disabilities in October 2006. By leave granted, plaintiffs later filed an amended complaint on August 23, 2007, adding a fifth count alleging wrongful discharge in retaliation.
On May 30, 2007, defendants served plaintiffs with interrogatories and document requests. Plaintiffs were non-responsive. Defendants provided discovery requested by plaintiffs. The court referred the case to mediation, which was scheduled for September 20, 2007. Because of the delay by plaintiffs in responding to discovery, mediation was adjourned, by mutual consent, to December 6, 2001, and, also by consent of the parties, the time for plaintiffs to furnish paper discovery was extended. Plaintiffs' depositions were scheduled for November 7 and 8, and December 3, 2007. Defense counsel wrote several letters urging plaintiffs' counsel to furnish discovery, in the absence of which defendants would not depose plaintiffs or participate in mediation, and, if the discovery was not furnished by October 30, 2007, would "file the appropriate motion to compel and/or dismiss."
On October 26, 2007, plaintiff, Ciemon Mouzon, provided interrogatory answers and a signed medical authorization form. Although the interrogatory answers had appended to them some tax information from 2005 and 2006, Mouzon did not respond to the request for production of documents, which requested, among other things, tax returns and related documents from January 1, 2000 forward.
On October 31, 2007, defendants filed a motion, pursuant to Rule 4:23-5, to dismiss the complaint without prejudice or, in the alternative, to compel plaintiffs to respond to the interrogatories and request for production of documents. The certification of defendants' counsel disclosed receipt of certified interrogatory answers and a signed medical authorization from Mouzon, but stated that her interrogatory answers were "not completely responsive," and that she did not respond to the request for production of documents. The certification also noted the absence of any responses to discovery by plaintiffs Dejon Welcome and Constance Coleman.
Welcome and Coleman did provide answers to interrogatories and sign medical authorizations, which were transmitted to defense counsel on October 31, 2007. It appears that defense counsel had not received them by the time the motion was filed, and that information was not included in counsel's certification. It also does not appear that defense counsel filed a supplemental certification informing the court of those responses from the other plaintiffs. In any event, Welcome and Coleman still did not respond to the request for production of documents, and their interrogatory answers, like Mouzon's, were not complete.
Plaintiffs did not oppose the motion. Through the cooperative efforts of counsel for both parties, it was agreed that the remaining information would be provided soon. Plaintiffs' counsel expected that he would be able to do so and would routinely apply for reinstatement of the complaint if the court dismissed it without prejudice. The most significant bone of contention was the absence of tax returns from all plaintiffs, which would provide important information with respect to their wage loss claims. Correspondingly, further information was requested regarding production of W-2 forms, identification of other employers from whom plaintiffs sought employment, and the like, all of which related to their wage loss claims.
During the pendency of the motion, defense counsel continued in the cooperative effort with plaintiffs' counsel. Accordingly, defendants' motion was postponed to allow plaintiffs' counsel additional time to provide requested information.
Finally, on December 20, 2007, the court entered an order dismissing the complaint without prejudice. The court struck the portion of the proposed form of order which would have ordered plaintiff to fully respond by a specified date rather than dismissing the complaint without prejudice.
On January 28, 2008, all three plaintiffs submitted to defense counsel responses to the document requests. With respect to request number nineteen, seeking copies of plaintiffs' Federal and State tax returns for the tax years 2000 to present, Welcome and Mouzon answered "See attached," and Coleman answered that she "does not have this document(s)." The ...