On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4772-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges Parrillo and Grall.
Plaintiffs John J. Kim and Young Hee Kim filed a complaint to recover damages for personal injuries allegedly caused by defendant Umberto Magarelli's negligent driving. They appeal from an order of dismissal with prejudice for failure to provide discovery. R. 4:23-5; Feinsod v. Noon, 261 N.J. Super. 82, 84- 85 (App. Div. 1992), certif. denied, 137 N.J. 314 (1994). Because the court erred in concluding that plaintiffs had not complied with their discovery obligations on the return date and did not consider whether plaintiffs' attorney gave them the notices required by Rule 4:23-5(a)(1)-(2), we vacate the order of dismissal with prejudice and remand to permit plaintiffs to file a motion to reinstate subject to payment of the restoration fee and such additional conditions and sanctions as the judge may impose.
The auto accident occurred on January 26, 2009, and plaintiffs filed their complaint on May 26, 2009. Defendant filed his answer and a counterclaim against John J. Kim six months later, on November 25, 2009. The court fixed July 14, 2010 as the discovery end date.
On June 22, 2010, defendant moved to compel discovery, and on the same day, with the consent of all parties, requested a sixty-day extension of the discovery end date. Plaintiffs' attorney opposed the motion as unnecessary, noting that he had provided authorizations from his clients allowing defendant to obtain their medical records. The authorizations plaintiffs' counsel appended to his certification, however, were not given to defendant's law firm; instead they authorized delivery of medical records to the firm representing John J. Kim on the defendant's counterclaim. In reply to plaintiffs' opposition to the motion to compel, defendant's attorney pointed out counsel's error in relying on the authorizations given to a different law firm and denied receipt of those authorizations. Defendant's attorney did not argue that plaintiffs should be required to provide their medical records and reports rather than authorizations.
On July 23, 2010, the court entered the discovery order provided by defendant's attorney. It required plaintiffs to produce the following within ten days of the order, or by August 2: all "records regarding" John J. Kim's treatment for TMJ and dizziness, sensitivity and tenderness over his left ear; the names and addresses of medical providers in Fort Lee who treated him in 2000 and 2007 for dizziness and TMJ; Young Hee Kim's "lumbar MRI report"; and any and all "records" relating to Young Hee Kim's "fall down accident" in February 2009. It also required plaintiffs to appear "for independent medical examinations on or before July 27," and for depositions on or before August 4.
Plaintiffs did not fully comply with that order. On July 26, 2010, they cancelled the independent medical examinations scheduled for July 27 and rescheduled them for August 10.
They also failed to appear for depositions on August 4. Nevertheless, on August 6, they provided authorizations permitting defendant's attorney to obtain the medical records and reports referenced in the July 23 order.
Detailing plaintiffs' alleged non-compliance, defendant moved to dismiss plaintiffs' complaint without prejudice on August 10, 2010. Among other things, defendant's attorney "submitted that it is not defendant's burden[,] given the terms of the July 23, 2010 order[,] to request and pay for the records that plaintiffs were required to produce."
Plaintiffs' attorney did not oppose the motion to dismiss without prejudice, but plaintiffs apparently made efforts to provide additional discovery while that motion was pending. Defendant's attorney wrote to the court to advise that plaintiffs had appeared for their independent medical examinations on August 10, but she further advised that she would not withdraw the motion to dismiss because plaintiffs had not yet appeared for depositions or complied with the order compelling production of medical reports and records. On August 27, the court entered an order dismissing the complaint without prejudice pursuant to Rule 4:23-5(a)(1). That order does not identify the deficiencies found by the court.
Sixty days after entry of order of dismissal without prejudice, on October 25, 2010, defendant moved for dismissal of the complaint with prejudice pursuant to Rule 4:23-5(a)(2). In a supporting certification, defendant's attorney indicated that plaintiffs had not moved to reinstate their complaint and that their attorney had not attempted to schedule his clients' depositions or provided the court-ordered documents.
In opposition to the motion to dismiss with prejudice, counsel for plaintiffs explained that Young Hee Kim had been in Korea since early September 2010, and had anticipated returning to the United States in early October but had been "unforeseeably and inevitably" delayed by "matters" that she had to address in her country. He also detailed the efforts plaintiffs had made after defendant filed the motion to dismiss with prejudice. According to the attorney, on November 1, 2010 he provided his adversary with authorizations to receive his clients' medical records and reports, with the exception of Young Hee Kim's MRI, which he represented would be provided as soon as she returned from Korea. In addition, he advised the judge that he had scheduled John J. Kim's deposition for November 22, 2010 and that Young Hee Kim would ...