On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1859-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
Plaintiff Glenn Teryek appeals both from the final order of the Law Division dismissing his cause of action against defendants with prejudice pursuant to Rule 4:23-5(a)(2) as a sanction for failure to respond to defendants' interrogatories within the time frame established by the rule, and from an earlier interlocutory order dismissing all but one basis for liability against defendants. We affirm.
On July 24, 2006, plaintiff filed a complaint against his employer, the New Jersey State Police (NJSP); the Office of the New Jersey Attorney General; and various individuals employed by those two State agencies, alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; certain sections of the State Constitution; the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and the common law right against retaliation. In lieu of filing a responsive pleading, defendants successfully moved to dismiss plaintiff's complaint, except for those counts arising under CEPA, for failure to state a claim upon which relief could be granted pursuant to Rule 4:6-2(e).*fn1
After joinder of issue, the parties propounded discovery demands on each other. By letter dated March 8, 2007, defense counsel notified plaintiff's attorney that defendants' first request for documents was overdue. On April 18, 2007, defendants moved to dismiss plaintiff's complaint without prejudice for failure to comply with discovery pursuant to Rule 4:23-5(a)(1).
By letter dated April 28, 2007, plaintiff's counsel requested that defense counsel withdraw the motion for dismissal and grant plaintiff an additional thirty days to provide discovery. Defense counsel did not agree to this request. On May 10, 2007, plaintiff "responded" to defendants' interrogatories by objecting to each question and providing a narrative which largely mirrored the allegations in plaintiff's complaint. The following day, May 11, 2007, the trial court entered an order dismissing plaintiff's complaint without prejudice.
On May 24, 2007, plaintiff filed a motion to vacate the order of dismissal, citing counsel's request for a thirty day extension and plaintiff's May 10, 2007 responses to defendants' interrogatories. The court denied plaintiff's motion by order dated June 22, 2007. After filing "revised responses" to defendants' discovery demands on August 18, 2007, which largely referred to his previous interrogatory responses or simply indicated that "[n]o documents presently satisfy this request," plaintiff filed a second motion to reinstate his complaint. The court denied this motion by order dated September 7, 2007.
On October 2, 2007, defendants moved to dismiss plaintiff's complaint with prejudice for his failure to comply with discovery pursuant to Rule 4:23-5(a)(2). On October 16, 2007, plaintiff's counsel sent defense counsel revised answers to defendants' interrogatories and responses to defendants' notice to produce; counsel also filed a third motion seeking to reinstate the complaint. Three days later, on October 19, 2007, plaintiff also filed a cross-motion seeking to suppress defendants' answers pursuant to Rule 4:23-5(a)(1).
These motions came before the trial court for argument on November 16, 2007. By order dated January 25, 2008, the court denied plaintiff's motions to vacate the prior order of dismissal and to suppress defendants' answers, and granted defendants' motion to dismiss plaintiff's complaint with prejudice. The court also denied plaintiff's motion for reconsideration.
On appeal, plaintiff now argues that the trial court erred in dismissing his non-CEPA claims and in dismissing with prejudice his CEPA cause of action under Rule 4:23-5(a)(2) because his answers to defendants' interrogatories were complete and responsive. We disagree.
We first address the court's dismissal under Rule 4:6-2 of plaintiff's non-CEPA claims. Plaintiff is Caucasian. His claims under the LAD were not based on allegations that he was discriminated against because of his race or gender or because of his associations with members of other races or women. Stated differently, plaintiff has not asserted the type of association claim we upheld in O'Lone v. New Jersey Department of Corrections, 313 N.J. Super. 249, 255 (App. Div. 1998). Plaintiff's claims here are similar to the claims asserted by the plaintiff in L.W. ex rel. L.G. v. Toms River Regional Schools Board of Education, 381 N.J. Super. 465, 501 (App. Div. 2005), aff'd, 189 N.J. 381 (2007), where we held that a mother did not have standing as an "aggrieved" person under N.J.S.A. 10:5-13 to recover damages based on the harassment suffered by her son for his alleged homosexuality.
Although plaintiff has nowhere cited N.J.S.A. 10:5-12d, the provision of the LAD that prohibits "reprisals against any person because that person has opposed any practices or acts forbidden under [the LAD]," he alleges that he was retaliated against because he failed to conform to the racist and sexist practices of the NJSP, and for his efforts to combat this insidious culture of discrimination. Plaintiff's assertions may form a basis for a claim under both the LAD and CEPA, but he may not proceed under both statutes simultaneously. A provision of CEPA states that "institution of an action in accordance with [CEPA] shall be deemed a waiver of rights and remedies available under ...