On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8886-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Payne, Reisner and Simonelli.
Plaintiff Yohannes Kassa appeals from four Law Division orders: the December 30, 2009 order, which denied plaintiff's motion to file a third amended complaint; the April 7, 2010 order, which compelled plaintiff to provide outstanding discovery and appear for deposition; the May 6, 2010 order, which dismissed the complaint without prejudice pursuant to Rule 4:23-5(a)(1); and the August 27, 2010 order, which dismissed the complaint with prejudice pursuant to Rule 4:23-5(a)(2). We affirm.
Plaintiff is a native of Ethiopia and a naturalized citizen of the United States. In 2003, plaintiff's purported wife, Simret Tesfaye Moges,*fn1 also native of Ethiopia, applied for an immigrant visa to come to the United States. After Moges's interview at the American Embassy in Ethiopia, the Embassy notified plaintiff that the interviewing officer suspected there was a blood relationship between plaintiff and Moges and suggested DNA testing to rule out relationship fraud. DNA testing under these circumstances is voluntary, not compelled by the United States government, and paid for by the visa applicant.
The Embassy gave plaintiff the names and addresses of two accredited DNA paternity testing facilities, which included defendant Clinical Testing and Research, Inc. (Clinical Testing), located in Ridgewood, New Jersey. In 2003, Clinical Testing was licensed by the State of New York to conduct parental relationship identity testing, licensed by the State of New Jersey as a clinical laboratory, and was certified by the American Association of Blood Banks (AABB) to conduct parentage testing activities. Leslie Johnson, Ph.D., Clinical Testing's owner and director, was certified by New York as a qualified laboratory director. New Jersey did not require Dr. Johnson to have a license to conduct DNA paternity testing.
Plaintiff chose to use Clinical Testing. On July 3, 2003, Dr. Johnson obtained plaintiff's buccal swab. On July 16, 2003, Moges's buccal swab was obtained at the Embassy.
According to the DNA Relationship Testing Procedures published by the United States Department of State,*fn2 the testing facility performing the DNA test must send a report of test results directly to the Embassy. The Embassy then contacts the applicant. Dr. Johnson sent the Embassy a report, dated September 1, 2003, which confirmed that there was a ninety percent probability that plaintiff was Moges's uncle or grandfather. In October 2003, the Embassy notified plaintiff that "[t]here is evidence that you do not, in fact, have a valid marriage." The notice also stated that Moges's visa petition was returned to the United States Department of Homeland Security for revocation, and plaintiff should contact Homeland Security for additional assistance.
The record reveals that although plaintiff had not received a copy of Dr. Johnson's report, he knew by December 2003 that the report stated that he and Moges were blood relatives. In fact, he wrote to Dr. Johnson on December 24, 2003, threatening to file a complaint for "willful and deliberate negligence," fraud, breach of contract, consumer fraud, "and other injuries suffered" resulting from her failure to send him the report. In addition, we discern from the record that in 2003, plaintiff filed a complaint with the New Jersey State Board of Medical Examiners (Board) against Dr. Johnson based on her alleged failure to have a license to conduct DNA paternity testing.
In February 2004, the Embassy advised plaintiff that Moges's petition had been returned to Homeland Security with the recommendation that he be prosecuted for alien smuggling. Thereafter, on December 27, 2005, plaintiff filed a pro se complaint in the Law Division against Dr. Johnson, Clinical Testing, and defendant DNA Forensic Consultants, LLC.*fn3 He subsequently filed a pro se amended complaint on May 12, 2006. The court dismissed both complaints without prejudice pursuant to Rule 4:6-2(e) for failure to state a claim.
On July 7, 2006, plaintiff filed a pro se second amended complaint, alleging the following: Count 1 - breach of a duty of disclosure; Count 2 - breach of informed consent; Count 3 -breach of beneficiaries' rights as decision maker; Count 4 -constructive fraud; Count 5 - breach of the covenant of good faith and fair dealing; Count 6 - willful or wanton misconduct; Count 7 - (omitted); Count 8 - breach of confidentiality; Count 9 - "(Discovery will reveal the legal terms to use for this breach);"*fn4 and Count 10 - breach of fiduciary duties. Plaintiff also alleged medical and/or professional negligence, and intentional infliction of emotional distress. Plaintiff's claims were grounded primarily on Dr. Johnson's failure to send him the report until January 13, 2004.
In a September 18, 2007 order, the court dismissed all counts in the
second amended complaint with prejudice, except Count 5, which it
dismissed without prejudice pursuant to Rule 4:23-5(a)(1) for
plaintiff's failure to provide discovery. Thereafter, the Board
notified plaintiff in December 2007, and January 2008, that it found
no basis for disciplinary action because Dr. Johnson was not required
to have a license to conduct DNA paternity testing.*fn5
The Board also notified plaintiff that it had investigated,
but found no reason to discipline Clinical Testing's employee, Edward
A. Weiner, M.D., a New Jersey licensed medical physician who also had
a New Jersey laboratory director license.
In a February 19, 2008 order, the court dismissed Count 5 of the
second amended complaint with prejudice pursuant to Rule
4:23-5(a)(2) because plaintiff failed to answer form interrogatories
and gave incomplete answers to supplemental interrogatories. Plaintiff
appealed from the September 18, 2007 and February 19, 2008 orders. We
affirmed the dismissal with prejudice of Counts 2, 3, 4, 8, 9, and 10.
Kassa v. Johnson, No. A-3345-07 (App. Div. June 16, 2009) (slip op. at
12-13). We reversed and remanded as to Counts 1 and 6, which we
construed to allege a cause of action for breach of contract due to
Dr. Johnson's failure to timely deliver the report or failure to
disclose information, and Count 5. Id. at 11. We also restored Counts
11 and 12, which alleged medical or professional malpractice, "subject
to defendants' right to ...