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Newman v. Metairie Corp.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 1, 2009

KEVIN NEWMAN, PLAINTIFF-APPELLANT,
v.
METAIRIE CORPORATION, A NEW JERSEY CORPORATION, LEGENDS MANAGEMENT COMPANY, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, PAFLA CONSULTING, INC., A FLORIDA CORPORATION, SEYMOUR SVIRSKI, HILLEL MEYERS, H. ALBERT WARRINGTON, AND BEATRICE VAN ETTEN, DEFENDANTS-RESPONDENTS, AND METAIRIE CORPORATION, LEGENDS MANAGEMENT, LLC, SEYMOUR SVIRSKY AND HILLEL MEYERS, THIRD-PARTY PLAINTIFFS,
v.
MARVIN KEITH, THIRD-PARTY DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-252-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 11, 2009

Before Judges C.L. Miniman and King.

Plaintiff Kevin Newman appeals from the March 10, 2008, dismissal of his complaint with prejudice for failure to appear at a December 3, 2007, conference. We reverse.

Plaintiff seeks to recover commissions earned in connection with the sale of condominiums and timeshares at the Legends Resort and Country Club in McAfee as well as damages for other claims related to the resort. The complaint was filed on April 20, 2001, and had been pending for almost seven years at the time of the dismissal.

On February 21, 2003, plaintiff, who had been pro se, con- sented to the substitution of Kelly & Ward, LLC, as counsel of record. That firm continued to represent plaintiff through the balance of 2003, and for the ensuing four years, received notices of court appearances from the court and co-counsel. The last notice of an appearance was issued by the court on October 12, 2007, which scheduled a case management conference before a new judge on November 15, 2007. As frequently occurred, that conference was rescheduled to December 3, 2007. Unfortunately, plaintiff's counsel failed to calendar the new date and did not appear.

When the judge called the case on December 3, 2007, pro hac vice counsel advised the judge that neither plaintiff nor his counsel were present. The judge replied, "No Newman, no case. Dismissed." On December 18, pro hac vice counsel submitted a form of order, severing the case from two consolidated cases and dismissing plaintiff's complaint with prejudice for failure to appear at the December 3, 2007, conference. On December 27, plaintiff's attorney objected to the form of order and explained his error in failing to note the appearance on his calendar. He asked that his client's case not be dismissed. Nevertheless, on March 10, 2008, the judge signed the form of order without change. This appeal followed.

Sanctions for failure to appear are governed by Rule 1:2- 4(a), which provides in pertinent part:

If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party . . . at a pretrial conference . . . , the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the Court made payable to "Treasurer, State of New Jersey," or to the adverse party; (b) . . . ; (c) the dismissal of the complaint, cross-claim, counterclaim or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion; or (d) such other action as it deems appropriate.

The Supreme Court has provided guidance in determining the appropriate sanction under this rule:

In respect of the ultimate sanction of dismissal, this Court has struck a balance by instructing courts to impose that sanction "only sparingly." Zaccardi [v. Becker], 88 N.J. [245,] 253 [(1982)]; see Georgis [v. Scarpa], 226 N.J. Super. [244,] 250 [(App. Div. 1988).] "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." Lang [v. Morgan's Home Equip. Corp.], 6 N.J. [333,] 339 [(1951)] (citations omitted); see Allegro [v. Afton Vill. Corp.], 9 N.J. [156,] 160-61 [(1952)]; Johnson v. Mountain-side Hosp., 199 N.J. Super. 114, 119 (App. Div. 1985). "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." Zaccardi, supra, 88 N.J. at 253 (citations omitted); see Johnson, supra, 199 N.J. Super. at 119. Moreover, the "imposition of the severe sanction of dismissal is imposed not only to penalize those whose conduct warrant it, but to deter others who [might] be tempted to violate the rules absent such a deterrent." Zaccardi v. Becker, 162 N.J. Super. 329, 332 (App. Div.), certif. denied, 79 N.J. 464 (1978).

[Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514-15 (1995).]

We, too, have repeatedly held that the sanction of dis- missal is the sanction of last resort, to be imposed only when no lesser penalty would be sufficient in view of the nature of the default and the prejudice it caused to the other parties. E.g., Rabboh v. Lamattina, 312 N.J. Super. 487, 492-93 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999); Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995); Georgis, supra, 226 N.J. Super. at 250; Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 406 (App. Div. 1986) ("Ordinarily, the swift movement of cases serves the parties' interests, but the shepherding function we serve is abused by unnecessarily closing the courtroom doors to a litigant whose only sin is the retain a [neglectful] lawyer . . . ."); Johnson, supra, 199 N.J. Super. at 119.

Here, the judge made no effort to find any facts beyond plaintiff's bare failure to appear. He did not explain why the ultimate sanction of dismissal was the only sanction that would cure the prejudice caused by the failure to appear. Indeed, it would seem that any prejudice would have been prevented by the courtesy of a telephone call on December 3, 2007, from the court or defense counsel to the office of plaintiff's counsel so that some attorney could appear on behalf of plaintiff within minutes, because that office is very close to the courthouse. The judge's above-quoted, terse comment did not satisfy his duty to consider and weigh the propriety of each available sanction under Rule 1:2-4(a) and explain why dismissal was required.

We are satisfied that dismissal was inappropriate on the facts before us. We do not, however, remand this matter for consideration of a lesser sanction because the plaintiff and his counsel have endured more than enough trouble and expense in prosecuting this appeal. Accordingly, we remand this matter for further proceedings on the merits of plaintiff's claims.

Reversed and remanded.

20090501

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