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Toni Clark v. Healthcare Employees Federal Credit Union

April 1, 2011

TONI CLARK, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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.

II.

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 ...


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