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Noren v. Heartland Payment Systems

January 21, 2010


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4528-06.

Per curiam.


Argued: January 4, 2010

Before Judges Axelrad and Fisher.

Plaintiff Greg Noren appeals from the November 7, 2008 order dismissing his complaint with prejudice pursuant to Rule 4:23-2 for failure to comply with discovery orders, and the January 9, 2009 order denying reconsideration. We reverse.

The complaint was originally filed by the law firm of Rosemary DiSavino on June l6, 2007, against defendant, Heartland Payment Systems (HPS). On October 5, 2007, an amended complaint was filed by substituted counsel, Eric Kleiner, which included officers and managers of HPS as additional defendants, asserting the following claims: (1) violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; (2) intentional harassment; (3) wrongful discharge; (4) intentional infliction of emotional distress; (5) defamation; (6) false light; (7) fraud; (8) negligent misrepresentation; and (9) breach of contract. On February l4, 2008, plaintiff filed a second amended complaint, which essentially pleaded the same counts as the amended complaint.*fn1 The case was heavily litigated; there were a "volley of motions" filed by the parties and they exchanged voluminous interrogatories and documents.*fn2

Three orders extending the discovery period were entered by the court, with the last discovery end date set for October l7, 2008.

Plaintiff's CEPA claim included the allegation that he was retaliated against based on conversations he had with co-employees and HPS' customers. A transcription of several of the tapes was provided by DiSavino to HPS. HPS requested production of all of plaintiff's tape recordings, and counsel thereafter discussed the logistics. By letter of May l, 2008, HPS' counsel reiterated his request and suggested the tapes be copied to a single CD. On May 9, 2008, the court entered an order compelling plaintiff to produce his tape recordings of conversations with HPS' employees and third party witnesses within thirty days and to appear for a deposition within that time and continue to appear until it was completed. Plaintiff traveled from his home in Arizona to appear for his deposition in New Jersey on two consecutive days in July 2008. Despite requests by HPS in August and September to schedule additional days, plaintiff's deposition was not completed.

On June 24, 2008, Kleiner sent HPS several CDs purporting to contain copies of sixteen tapes made by plaintiff of several telephone conversations. Defense counsel ascertained that one tape had been recorded at a very high speed and some were inaudible or silent, including three for which transcripts had been provided. He returned the deficient disks to Kleiner who agreed at the deposition to follow up on the problem. Kleiner never supplied new audible copies of the tapes.

On May l9, 2008, HPS had also served a request for production of plaintiff's federal and state tax returns for l999 through 2007, with copies of worksheets, schedules, notes, W-2s, l099s and other related documents. The apparent reason for the request pertained to plaintiff's claim that what was reported in the W-2 from HPS did not accurately reflect what was paid to him. Prior to plaintiff's deposition, copies of various W-2s and l099s were produced, but not the actual tax returns. Thereafter, HPS filed a cross-motion to compel discovery of this information within ten days, which was granted by court order of September 26, 2008.

On the same date, the court also granted Kleiner's motion to be relieved as counsel and denied plaintiff's motion to extend the discovery end date.*fn3 On October 7, HPS advised plaintiff by letter that a motion to dismiss would be filed if the tax returns were not provided by October l3, 2008, and if he did not respond to the third request for production of documents (which apparently included plaintiff's personal bank statements for his years of employment with HPS) that had been served after his deposition. On October 8 and l5, 2008, HPS filed motions, respectively, to dismiss counts two through eight of the complaint and dismiss the complaint for failure to comply with discovery orders.*fn4 On October 21, 2008, following the completion of discovery, the court generated a notice of trial for January 5, 2009, directed only to HPS' counsel.

At the time these motions were pending, plaintiff had contacted his current law firm, Cole Schotz, to obtain representation, but the attorneys were still reviewing the case files to determine whether to represent him. On November 5, 2008, after defense counsel denied its request for an adjournment of the motions, Cole Schotz wrote to the court requesting the motions be adjourned one cycle so it could complete its review of the case files before entering an appearance. In his pro se status, plaintiff also wrote a letter to the court the next day with the same request.

On November 7, 2008, the court entered an order denying plaintiff's adjournment request, stating:

Plaintiff's request to adjourn was received November 6, 2008 (for November 7, 2008 motion) "to give new counsel an opportunity to complete discovery." First of all, new counsel has not been retained and substituted in. Secondly, plaintiff was aware, at least as of August 8, 2008 from his fifth (or sixth) attorney, Mr. Kleiner, that he should hire another attorney but failed to do so. Plaintiff was also aware from the Court's Order relieving Mr. Kleiner that ...

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