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Deborah Berk v. State of New Jersey

May 25, 2011


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2889-06.

Per curiam.


Argued May 3, 2011

Before Judges Wefing, Baxter and Koblitz.

Plaintiff Deborah Berk appeals from a June 7, 2010 Law Division order that dismissed her complaint with prejudice based upon her repeated failure to appear for deposition. She also appeals from a July 23, 2010 order denying her motion for reconsideration. Although we recognize that the dismissal of a party's cause of action with prejudice is a drastic measure that should be applied sparingly, only when no lesser sanction will suffice, we conclude such remedy was warranted here. We affirm.


Plaintiff is an attorney who was employed by the Office of the Public Defender from July 1999 until November 4, 2005, by which time she had been promoted to the title of managing attorney in the Office of Law Guardian. As managing attorney, plaintiff was required to supervise a number of attorneys, one of whom never became eligible to practice law in New Jersey, because he never paid the annual attorney assessment. Plaintiff also learned that he had been disbarred in New York in June 2004. When plaintiff brought these issues to the attention of her immediate supervisors, defendants Lorraine Augostini and Cynthia Samuels, both allegedly engaged in ongoing harassment of plaintiff.

On November 8, 2006, plaintiff filed suit against Samuels and Augostini, as well as the Office of the Public Defender, alleging that in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, defendants unlawfully terminated her employment in November 2005*fn1 in retaliation for having reported that an attorney in her office was ineligible to practice law.

After filing their answer on January 2, 2007, defendants served plaintiff with interrogatories and requests for production of documents. The record does not provide any detail concerning plaintiff's response to those requests. Instead, the record on appeal merely includes a copy of an August 28, 2008 Law Division order dismissing plaintiff's complaint without prejudice "for failure to answer interrogatories and failure to produce documents[.]" The order also required plaintiff to make herself available for a deposition "prior to September 22, 2008, or she [will be] barred from presenting testimony in this matter."

When by June 2009 plaintiff had not cured the discovery violations that had led to the August 28, 2008 order of dismissal without prejudice, defendants moved for dismissal with prejudice pursuant to Rule 4:23-5(a)(2). In response to defendants' motion, and after supplying discovery responses that were satisfactory to defense counsel, plaintiff cross-moved to vacate the order of dismissal. By order of July 17, 2009, the judge granted plaintiff's motion to vacate the dismissal of her complaint and to restore her cause of action to active status. The judge also extended the discovery end date (DED) to December 15, 2009. The record does not inform us of the reasons for that extension, nor does the order set a date by which plaintiff was required to appear for her deposition, other than the DED of December 15, 2009.

Shortly after the entry of the July 17, 2009 order, defendants again served plaintiff with a notice to take her deposition, scheduling it for August 21, 2009. Plaintiff's counsel responded that he had another deposition scheduled that day, "so we will need to reschedule." He promised to "reach out" to his client "to figure out her availability." Counsel noted that "due to vacation plans and work obligations," he was "already pre-booked into September," but promised to "try to find the earliest possible date."

Defense counsel responded to plaintiff's counsel's email by stating "[t]hat's fine -- please give me dates in September/October now that the discovery end date is December 15th and the trial date is now cancelled."

When plaintiff had not appeared for her deposition or provided alternate dates when she was willing to do so, defendants moved on December 15, 2009, for a second time, for an order dismissing plaintiff's complaint with prejudice. The court denied the motion by order of February 16, 2010, but granted plaintiff's cross-motion for another extension of discovery, for the express purpose of completing depositions. The DED was extended to March 1, 2010.

In the interim, having heard nothing from plaintiff or her counsel concerning dates upon which they would be available, on January 22, 2010, which was five months after plaintiff's counsel cancelled the August 21, 2009 deposition, defense counsel sent plaintiff another deposition notice. Captioning the notice as a "6th Notice to Take Oral Deposition of Plaintiff," defense counsel scheduled the deposition for February 3, 2010.

On February 1, 2010, two days before the deposition was to take place, defense counsel sent plaintiff's counsel a follow-up email concerning plaintiff's counsel's earlier statement that he might still be on trial on February 3, and therefore unable to appear with his client at the deposition. Defense counsel wrote, "[a]s your trial concluded on 1/27, I don't know why you could not be ready to proceed with the deposition on 2/3 as scheduled[,]" but "I am available Thursday, 2/4 for the deposition if you can't do the 3rd."

On February 4, 2010, plaintiff's counsel responded as follows:

My client is in the hospital because she had a seizure, fell and broke her collarbone. She has been quite sick due to seizures for some time. I am reaching out to her neurologist to get a clearer picture of her condition, as it relates to her ability to ...

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