April 1, 2011
TONI CLARK, PLAINTIFF-APPELLANT,
HEALTHCARE EMPLOYEES FEDERAL CREDIT UNION, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1721-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 15, 2011
Before Judges Baxter and Koblitz.
Plaintiff Toni Clark appeals from a July 23, 2009 Law Division order that denied her motion for reconsideration of an earlier order that dismissed her complaint with prejudice pursuant to Rule 4:23-5(a)(2) for failure to supply discovery. We agree with the trial judge's conclusion that dismissal with prejudice was appropriate, and affirm the order under review.
On November 8, 2006, defendant, Healthcare Employees Federal Credit Union (credit union), denied plaintiff's application for a $2000 loan and an unsecured Visa credit card.*fn1
Plaintiff contended that she was financially qualified, but despite her qualifications, the credit union impermissibly denied her application based on her race, color, sex and marital status.
On June 27, 2008, plaintiff filed her complaint alleging that the credit union discriminated against her, in violation of the Equal Credit Opportunity Act, 15 U.S.C.A. § 1691. Defendant responded by propounding interrogatories. On January 7, 2009, plaintiff emailed the judge requesting additional time for discovery, and emailed defendant to reschedule her January 20, 2009 deposition. On January 14, 2009 plaintiff emailed defendant to request additional time to answer the interrogatories due to an unspecified illness. Defendant agreed to extend the deadline until January 22, 2009 for the interrogatories, and asked plaintiff to provide dates to reschedule her deposition. On January 30, 2009, plaintiff emailed defendant three possible dates for the deposition: April 30, May 8 or May 22, 2009.
Plaintiff failed to respond to the interrogatories, and on February 20, 2009, pursuant to Rule 4:23-5(a)(1), the judge granted defendant's motion for the dismissal of plaintiff's complaint without prejudice. Despite that order, plaintiff failed to respond to the interrogatories within the sixty days specified by Rule 4:23-5(a)(2). Consequently, defendant moved for dismissal of plaintiff's complaint with prejudice.
At the ensuing hearing on June 12, 2009, the judge questioned plaintiff about why she failed to answer the interrogatories. Plaintiff said she "was ill," "attacked by fevers," and her "state of mind wasn't clear." Plaintiff claimed she was homeless and living at Newark International Airport. However, she acknowledged that she had gone to the Newark Public Library and used its computer to send emails to the judge and defendant. When asked why she did not answer the interrogatory questions while she was at the library, plaintiff replied that she was not "in the right frame of mind" to answer the questions, and she "just didn't want to sit there and write those questions[.]" The judge observed that plaintiff was able to prepare a motion in April 2009,*fn2 but not respond to the interrogatories, to which plaintiff acknowledged that she was "much better" in April.
The judge found that without just cause plaintiff failed to answer the interrogatories within the sixty days following the dismissal without prejudice, and defendant was therefore entitled to the dismissal of plaintiff's complaint with prejudice. Plaintiff filed a motion for reconsideration, which was denied on July 23, 2009. On appeal, plaintiff contends she was ill and homeless; she requested more time to answer the interrogatories; and the judge's refusal to afford her that opportunity constitutes reversible error.
Our scope of review of a dismissal of a complaint with prejudice for failure to make discovery is limited to whether the trial court abused its discretion. Abtrax Pharm., Inc., v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). We will not interfere with a trial court's exercise of discretion "unless an injustice appears to have been done." Ibid.
A dismissal with prejudice is the "ultimate sanction," and it should be avoided unless no other remedy is reasonably available. Id. at 515. To succeed on a motion to dismiss with prejudice for failure to make discovery, the moving party must comply with the requirements of Rule 4:23-5. Zimmerman v. United Servs. Auto., 260 N.J. Super. 368, 373 (App. Div. 1992). Dismissing a complaint with prejudice pursuant to Rule 4:23-5 involves a two-step process. Sullivan v. Coverings & Installation, 403 N.J. Super. 86, 93 (App. Div. 2008). "First, the aggrieved party may move for dismissal for non-compliance with discovery obligations," under paragraph (a)(1) of the rule, and "if the motion is granted, the complaint is dismissed without prejudice." Ibid. "If an order of dismissal . . . without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal . . . with prejudice." R. 4:23-5(a)(2).
A dismissal without prejudice does not automatically ripen into a dismissal with prejudice. Sullivan, supra, 403 N.J. Super. at 93. Therefore, if the delinquent party cures the discovery violation within the sixty-day period, pays the restoration fees and any other sanctions, the motion judge is obliged to restore the complaint at any time prior to a dismissal with prejudice. Ibid.
The standard for a delinquent party to defeat a motion for dismissal with prejudice is "exceptional circumstances." Rodriguez v. Luciano, 277 N.J. Super. 109, 112 (App. Div. 1994). "To meet that standard there would have to be proved the existence of external factors (such as poor health or emergency) which substantially interfered with the party's ability to meet the discovery obligations." Ibid. (quoting Suarez v. Sumitomo Chem. Co., 256 N.J. Super. 683, 688-89 (Law Div. 1991)).
At the motion hearing on June 12, 2009, plaintiff claimed she was unable to answer the interrogatories because she was ill, had fevers and her mind was not clear, but she did not provide the judge with any documentation supporting these claims. Further, she contended that she was homeless, but despite her homelessness, plaintiff was able to use the computer resources of the Newark Public Library to email defendant and the trial court on three separate occasions. Plaintiff was also capable of filing a motion in April 2009, but for reasons not explained to the judge, was unable to answer the interrogatories although she was "much better" in April.
In order to defeat the motion for dismissal with prejudice, plaintiff was required to supply the missing discovery or prove the existence of external factors, which substantially interfered with her ability to meet the discovery obligation. Rodriguez, supra, 277 N.J. Super. at 112. Although poor health would be an exceptional circumstance, plaintiff provided no documentation to the court in support of her claimed medical condition. Consequently, this factor did not establish the extraordinary circumstances necessary to defeat the motion for dismissal with prejudice.
As to plaintiff's homelessness, the record reflects that she was unable to demonstrate how such situation substantially interfered with her ability to meet the discovery obligation, because plaintiff conceded she used the computer at the Newark Public Library to send emails, but chose not to answer the interrogatories because she was not in "the right frame of mind." Thus, plaintiff's homelessness had no bearing on her failure to answer interrogatories. Moreover, at the time of the hearing on defendant's motion for dismissal with prejudice, plaintiff had still not provided the missing interrogatory answers.
The judge's conclusion that plaintiff failed to establish the "exceptional circumstances" required by Rule 4:23-5(a)(2) is well-supported by the record. Consequently, we have no occasion to disturb the judge's finding that dismissal with prejudice was warranted. In light of that determination, we have no need to address the denial of plaintiff's reconsideration motion.