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Joan Struss v. Poe & Freireich


November 10, 2011


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9013-09.

Per curiam.


Argued October 26, 2011

Before Judges Graves and Harris.

This appeal presents a recurrent scenario familiar to those engaged in civil litigation in the Law Division: the application of Rule 4:23-5(a)(2)'s dismissal sanction because of a pro se litigant's discovery delinquencies. Plaintiff Joan Struss, now represented by counsel, appeals from the denial of her motion for reconsideration seeking to undo the dismissal with prejudice of her legal malpractice action due to five distinct discovery delinquencies. Because we are not satisfied that our jurisprudence in this well-trodden procedural environment was followed, we reverse and remand for further proceedings.


The facts of the underlying legal malpractice action --which we need not recite -- are largely collateral to the lamentable procedural journey reflected in the record. In late October 2009, Struss's then-attorney, Giovanni De Pierro, Esq. (affiliated with the law firm of Ambrosio, De Pierro & Wernick), filed a complaint in the Law Division, Essex Vicinage, alleging that defendants committed legal malpractice. On January 6, 2010, two weeks before defendants filed an answer, Struss and an individual named Sal Basso wrote to De Pierro "terminating the services of [his] office effective immediately."*fn1 This termination was not communicated to the court, defendants, or defendants' attorney until several months later.

On February 3, 2010, defendants served De Pierro with a "First Set of Interrogatories and Initial Demand for Production of Documents." Responses to the notice to produce were due on or about March 3, 2010, and the interrogatories on April 3, 2010.

In the interim -- unbeknownst to defendants and their attorney -- Struss commenced a separate action against De Pierro and his law firm seeking "emergent injunctive relief" in the Law Division, Essex Vicinage, for the release of her file and the return of her unused retainer. In order to pursue De Pierro and his law firm, Struss retained the legal services of Anthony F. Malanga, Jr. (her counsel on appeal) of Gaccione, Pomaco & Malanga, P.C.

On March 4, 2010, Judge Paul J. Vichness entered an order requiring De Pierro to release Struss and Basso's "entire files and related documents" by March 12, 2010. Judge Vichness also ordered that De Pierro execute a substitution of attorney in favor of Malanga for the within action within two days "of a request for such substitution being made."

De Pierro submitted a certification in the instant case contending that he made "repeated requests" that Struss and Basso "retrieve their file" from him. De Pierro also stated that "[o]n [March 12, 2010,] [he] indicated that [Struss and Basso's] files were available in [his] office."

On March 16, 2010, Malanga advised De Pierro that before he would substitute as counsel, he would need to review Struss's litigation file. The next day, Malanga wrote De Pierro that due to a medical emergency affecting Basso, the "appointment to inspect the files will be delayed."

Meanwhile, on the malpractice litigation front, defendants had not received either answers to interrogatories or documents responsive to the notice to produce, for obvious reasons. Not being aware of the machinations taking place in the independent file-retrieval litigation, defendants filed a motion to dismiss Struss's complaint without prejudice for failure to provide discovery pursuant to Rule 4:23-5(a)(1). The motion was unopposed and on April 30, 2010, a different Law Division judge entered an order dismissing Struss's complaint without prejudice.

On May 13, 2010, De Pierro, knowing that he was no longer Struss's attorney (although he was still the attorney of record for the malpractice litigation because a substitution of attorney had not yet been filed), filed a motion on her behalf to (1) vacate the April 30 order of dismissal and (2) reinstate the complaint. The Law Division denied the motion on June 11, 2010.*fn2

That same day, De Pierro executed a substitution of attorney in favor of Struss, conferring upon her pro se status. Later that day, Struss finally retrieved her file from De Pierro's firm.

Less than three weeks later, on June 29, 2010, defendants filed a motion to dismiss Struss's complaint with prejudice for failure to provide discovery pursuant to Rule 4:23-5(a)(2). Struss was served with the motion papers together with the requisite notice to a pro se litigant in the form prescribed by Appendix II-B of the Rules of Court. The motion was scheduled for oral argument*fn3 on July 23, 2010, almost nine months after the initial malpractice complaint was filed.

The day before the scheduled hearing, Struss served defendants with responses to their long-overdue discovery requests claiming that they were fully responsive. The next day, defendants' attorney advised Struss that her discovery responses were deficient and requested fully responsive answers. Specifically, there were five discrete deficiencies identified, summarized as follows:

* Interrogatory #12 requested the identification of persons who were acting on behalf of defendants in connection with their representation of Struss. She answered, "Giovanni De Pierro, Esq.," which clearly was a mistake. Defendants demanded the "names of anyone other than Jay Freireich, Esq. and Jeffrey J. Berezny, Esq. that [Struss] spoke to or dealt with at Poe & Freireich during their representation of [Struss]."

* Interrogatory #17 requested the identification of any statutes, ordinances, or administrative regulations that Struss claimed were violated by defendants. She responded obliquely, "a. Attorney/client privilege; b. Legal Malpractice; c. Legal Abandonment." Defendants demanded specific citations to statutes, ordinances, or administrative regulations.

* Interrogatory #47 requested the identification of all communications written by Sal Basso. Struss responded: "N/A." Defendants demanded compliance with Rule 4:10-2(a).

* Request to Produce #2 sought copies of all writings of Sal Basso "that in any way discusses any aspect of your malpractice claim(s) against Defendants." Struss responded, "Protected under attorney-client privilege." Defendants disputed the applicability of the privilege and demanded the writings.

* Request to Produce #4 sought copies of all documents reviewed or utilized by the author of Struss's Affidavit of Merit. Her cryptic response was the following: "Not identified whatsoever in Affidavit of Merit." Defendants repeated their request for copies of all documents that were "looked [at] in formulating the Affidavit [of Merit]."

Struss, defendants' attorney, and Malanga appeared in court to address defendants' motion.*fn4 Malanga informed the judge that he was not acting as Struss's attorney of record because he needed additional time to review the litigation file. Nevertheless, the motion judge allowed Malanga to speak restrictively on Struss's behalf. Consequently, the return date of the motion was adjourned to September 16, 2010, so that Struss could formally obtain counsel and fully respond to defendants' deficiency letter. Aside from Malanga's certification, there is no transcript or other record corroborating these events in the parties' appendices. However, defendants do not dispute Malanga's account of the events.

Malanga's certification also stated that on August 27, 2010, he advised Struss that he was unable to take her on as a client because of his demanding trial schedule, a family member's medical needs, and other family obligations. Thus, Struss continued to represent herself and filed a cross-motion to (1) vacate the dismissal without prejudice and (2) reinstate her complaint.*fn5 Defendants opposed Struss's cross-motion, citing Rule 4:23-5(a)(2)'s requirement that a delinquent party must (1) provide fully responsive responses to all outstanding discovery demands before the pleading can be restored and (2) submit the requisite $300 restoration fee, neither of which was done.

On September 16, 2010, after hearing oral argument, the motion court denied Struss's cross-motion and granted defendants' motion to dismiss with prejudice. In rendering its decision, the court observed in pertinent part the following:

All right. This is a motion -- there are two motions here, I guess. There's a motion to reinstate the case filed on -- by Ms. Struss as the plaintiff in the motion by the attorneys for the defendant Poe and Freireich to dismiss the case with prejudice.

As set forth by defense counsel, the -- there has been a long and tortured history in this case. And although I have some sympathy for the situation of Ms. Struss there has to be some finality in this case. This has certainly gone on -- this discovery issue has gone on much longer than it should. And I did indicate with Mr. Malanga here and Ms. Struss the last time, that unless the -- the discovery was provided to the defense -- defendants that I was prepared to grant the motion to dismiss with prejudice and deny any further applications to reinstate.

In addition, I indicated to Ms. Struss that we were no longer going to go through this exercise of waiting for new attorneys.

The court further added:

Ms. Struss you -- you turned information over to the [defendants' attorney], which you purported was in response to their -- to the discovery request. However, over two months ago they let you know that the information was unresponsive. So, now you've had two months knowing you still [have] to provide them with information.

Okay. All right. I'm satisfied that in this matter . . . we have given Ms. Struss more than adequate time. Not only to obtain counsel but to correct any -- the deficiencies in the information that she did turn over.

As I indicated, although Ms. Struss is a pro se, I think we've already gone -- bent over backwards on her behalf, try to extend her more time than we normally would do. And she has had the file for quite some time and at least for two months now, she's known that the information that she turned over to the [defendants' attorney] was deficient.

Therefore, I'm going to deny the motion to vacate -- to vacate the initial dismissal.

I'm going to grant the defendant[s'] motion[] to dismiss the case with prejudice pursuant to [R]ule 4:23-5(a)(2).

On October 4, 2010, Struss, with Malanga now officially the attorney of record, filed a motion for reconsideration. The court denied the application, handwriting on the October 29, 2010 order the following:

Plaintiff had nine months to retain counsel. The fact that [the] complaint was dismissed [without] prejudice is irrelevant to hiring [an] attorney. Plaintiff[] had ample time to respond to [defendants' July 23, 2010] deficiency letter with or [without an] attorney. Court complied with St. James[*fn6 ] standard by allowing plaintiff [two] extra months.

Reconsideration standard has not been satisfied.

On December 13, 2010, Struss filed a notice of appeal seeking to review (1) the September 16, 2010 order dismissing her complaint with prejudice (and denying her cross-motion for reinstatement) and (2) the October 29, 2010 order denying her motion for reconsideration. On March 1, 2011, we granted defendants' motion to dismiss the appeal as to the first order and limited Struss's appeal to the October 29, 2010 reconsideration order.


Reconsideration is a matter left to the discretion of a trial court. Capital Fin. Co. of Del. Valley, Inc., 398 N.J. Super. 299, 310 (citing Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002)). As such, our review of a denial of a motion for reconsideration is governed by an abuse of discretion standard. Davis v. Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010) (citing Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997)).

"'Reconsideration should be utilized only for those cases . . . that fall within that narrow corridor in which either (1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Capital Fin. Co. of Del. Valley, Inc., supra, 398 N.J. Super. at 310 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Under this standard, only actions that are "arbitrary, capricious, or unreasonable" will be available for reconsideration. D'Atria, supra, 242 N.J. Super. at 401.

We conclude that the Law Division abused its discretion in at least one of three ways. First, it arbitrarily refused to consider the unique, beyond-her-control exceptional circumstances that Struss found herself in after she fired her attorneys, then fought to retrieve her files, and finally encountered a situation -- the medical condition of her associate Basso -- that constituted excusable neglect for the long failure to satisfy the discovery delinquencies. Second, the court capriciously focused its interest upon Struss's status as a pro se litigant who "had nine months to retain counsel." Instead, the court's locus of attention should have been with the unfulfilled discovery obligations. Third, the motion court unreasonably failed -- in both the initial and reconsideration modalities -- to fully explicate the five specific discovery delinquencies as required by St. James. Had the court engaged in that process at either point, Struss probably would have been able to reasonably satisfy those delinquencies.

We fully appreciate the frustration that the Law Division must have felt since it had given Struss from late July until September 16 to bring her discovery responses into compliance. However, missing from that gift of time is resolution of the dispute between plaintiff and defendants over the responsiveness of the five putative discovery delinquencies. Presumably, the court believed that the parties' discovery dispute was resolvable amongst themselves. To the contrary, given the precarious posture of the case -- on the brink of self-destruction by Struss, regardless of her pro se status -- the motion court was obliged to fully engage itself under St. James, and give Struss a reasonable opportunity to provide the specific discovery ordered by the court.

Additionally, we fully understand that Struss's submissions as part of the motion for reconsideration largely narrated facts already known to the parties and previously reviewed by the court on September 16. However, without the earlier sure hand of the court guiding the parties to avoid the ultimate sanction of dismissal, Struss's shortcomings pale in comparison to the court's lack of oversight. The failure of Struss to present any decisional law or any other authoritative support for her claim of error in the September 16 order does not immunize the Law Division from fulfilling its obligation to properly advance the purposes of Rule 4:23-5(a).

Rule 4:23-5(a)'s main purpose is not to serve as a docket-clearing mechanism. Instead, its design is to compel compliance with outstanding discovery obligations, not to dismiss the case, except as a last resort. Adedoyin v. ARC of Morris Co. Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999). Trial judges must proceed cautiously when confronted by a situation where the ultimate litigation disaster of termination of a cause of action might occur where some discovery materials have been provided.

We have held that the furnishing of incomplete discovery responses can "not automatically be considered as a failure to answer under R. 4:23-5." Ibid. To justify entry of an order putting a final end to plaintiff's malpractice action pursuant to Rule 4:23-5(a)(2), defendants arguably must show that Struss's responses were "patently inadequate[.]" Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 377 (App. Div. 1992). The motion court granted defendants' motions but did not determine anything about the quality of Struss's answers to the interrogatories and production of documents. Our review of the discovery materials suggests that there may be merit to both sides' points of view. Accordingly, the dispute requires a judicial determination.

Reconsideration should be exercised "'in the service of the ultimate goal of substantial justice.'" Casino Reinvest. Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). See also Lombardi v. Masso, 207 N.J. 517, 534 (2011) (recognizing that under Rule 4:42-2, interlocutory orders shall be subject to reconsideration "at any time before the entry of final judgment in the sound discretion of the court in the interest of justice").

We believe that the interests of justice are best served by reversing the order of October 29, 2010, and remanding the matter to enable the Law Division to review defendants' claims of discovery violations together with Struss's explanation of why her responses satisfy our Rules of Court, all under the guidance of St. James. Afterwards, if the court finds Struss's responses still wanting, it may impose a reasonable timetable for any necessary compliance and remediation, the default of which will cause Struss's malpractice action to succumb again.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

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