On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7754-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
Plaintiffs, Angelina and Jeannette Maisonet, appeal from the dismissal of their complaint with prejudice after they failed to pay counsel fees imposed as a sanction for reinstating the complaint, which was previously dismissed due to numerous discovery violations. We affirm.
The complaint stems from a motor vehicle accident occurring on September 27, 2004. At that time, Angelina*fn1 was a passenger in a motor vehicle operated by Jeannette on How Lane, near its intersection with Marigold Street, in New Brunswick when their vehicle collided with a vehicle operated by defendant Suzanne Glad and owned by Quinton Glad. Plaintiffs filed their complaint in Superior Court seeking to recover damages for the injuries they allegedly sustained as a result of the accident. They named the Glads as defendants, as well as New Hampshire Insurance Company. Plaintiffs later stipulated to a dismissal of the complaint against the insurance company.
The remaining defendants filed an answer to the complaint and propounded interrogatories upon plaintiffs which they failed to timely answer. On August 27, 2007, defendants moved to dismiss the complaint for failure to provide the requested discovery. Plaintiffs provided some of the requested discovery and defendants withdrew their motion. In October, however, defendants once again filed a motion to dismiss the complaint for failure to provide discovery, specifically, the requisite physician certifications pursuant to N.J.S.A. 39:6A-8(a) for actions arising out of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to -35. Defendants agreed to a two-week extension on the return date of the motion. Plaintiffs' counsel claimed that although the physician certifications were requested on October 17, 26, 31 and November 1, the certifications were not provided. The court granted defendants' motion and dismissed the complaint without prejudice on November 16.
The discovery end date for the completion of all discovery was January 22, 2008. By that date, plaintiffs had not yet provided the outstanding discovery and therefore had not sought reinstatement of the complaint. The outstanding certifications were provided to defense counsel on February 21, 2008, less than three weeks before the scheduled March 12 arbitration date. The court dismissed plaintiffs' complaint on March 12 for failure to appear at the scheduled arbitration. This arbitration related solely to the personal injury protection aspect of the case against the insurance company. Additionally, the Glads' attorney had apparently notified the court in January that no one would be appearing at the March 12 arbitration, given the November 16 order dismissing the complaint against the Glads without prejudice for discovery violations.
On March 20, the parties appeared before the court on defendants' motion to dismiss plaintiffs' complaint with prejudice for failure to reinstate the complaint within ninety days. Although acknowledging that plaintiffs' discovery obligations had not been satisfied, whether due to plaintiffs' counsel's "fault, the doctor's, or a combination[,]" the court determined to exercise its discretion to impose a remedy that if:
[plaintiffs' counsel] wants to proceed with this, then maybe there ought to be reimbursement to [defense counsel] and [defense counsel's] client for the time to get here. That [e]nsures that [plaintiffs' counsel's] client still has an action, if there's an injury, but does not harm [defense counsel] or [defense counsel's] client in terms of the additional cost. That to me would seem to be an appropriate remedy.
The court indicated to counsel that it intended to reinstate the complaint subject to payment of reasonable counsel fees. Plaintiffs' counsel sought clarification and expressed the need for an arbitration date. The court responded:
I'm not setting an arbitration date. I'm not setting a trial date. I'm not changing anything. I do not have a complete history of the case, other than what's been supplied to me and discussed. . . . I have the fact that it's been dismissed at arbitration for failure to appear. I'm going to vacate that and reinstate it, and I'm sure they'll set up another arbitration.
My anxiety is that your adversary is going to want to do dep[osition]s of your expert . . . [t]here's going to be no report, and we'll be back here. But I'll cross that bridge when I get to it.
The reality is, I have to consider whether I'm going to include that in the order somehow; . . . some kind of scheduling, and I'm . . . hesitant to do that because I don't really know where the case is. But if all you've got, [defense counsel], is a certification without an expert report at this late stage and it's not only after the discovery end date, but after the initial arbitration date, you may be precluded from getting expert reports and you may ...