On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1250-09.
The opinion of the court was delivered by: Espinosa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Espinosa.
The opinion of the court was delivered by ESPINOSA, J.A.D.
Plaintiff, A&M Farm & Garden Center (A&M), appeals from orders that dismissed its complaint with prejudice and denied its motion to vacate the order. Rule 4:23-5(a)(3), which governs the dismissal or suppression of pleadings with prejudice for failure to provide discovery, requires a motion judge to take action to obtain compliance with the requirements of the rule. Despite obvious breaches of the rule's requirements, the motion judge here granted an unopposed motion to dismiss plaintiff's complaint with prejudice without taking any action to secure compliance. Under the facts of this case, we conclude that it was an abuse of discretion to enter the order of dismissal with prejudice and, consequently, it was error to deny the motion to vacate that order and reinstate the complaint.
A&M filed a complaint on May 14, 2009, against defendant American Sprinkler Mechanical, L.L.C. (American Sprinkler), and several fictitious parties, alleging it had suffered damages as a result of the improper installation of a fire suppression system. In its complaint, A&M demanded that American Sprinkler provide answers to Uniform Form C and Form C(2) Interrogatories. Pressler and Verniero, Current N.J. Court Rules, Appendix II (2012). After obtaining A&M's consent to an extension of the time to answer, defendant filed an answer and served plaintiff with interrogatories and a notice to produce documents in February 2010.
The initial discovery end date was July 5, 2010. The parties later stipulated to the extension of the discovery period for sixty days to September 3, 2010.
Neither party provided timely discovery responses. In April 2010, defendant's counsel spoke with plaintiff's counsel and requested A&M's discovery responses. On May 18, 2010, American Sprinkler served its answers to interrogatories and also filed a motion to dismiss plaintiff's complaint without prejudice for failure to provide discovery. A&M did not file any opposition to the motion. An order was entered, dismissing the complaint without prejudice, on June 11, 2010.
Plaintiff's counsel advised A&M of the entry of the order and its consequences. Yet, in the sixty days that followed, plaintiff did not provide responses to the discovery demands or move to vacate the dismissal. Defendant filed a motion to dismiss the complaint with prejudice on August 30, 2010.
It is now undisputed that defendant's motion was duly served, receipt having been acknowledged by a receptionist at plaintiff's counsel's law firm. However, no opposition was filed to the motion. Despite the requirements of Rule 4:23-5(a)(2), no affidavit was filed by counsel for plaintiff and no attorney appeared on behalf of plaintiff on the return date. The order dismissing the complaint with prejudice was entered on September 17, 2010, with the notation that the motion was unopposed. No reasons were set forth on the order or on the record in support of the dismissal with prejudice.
On October 13, 2010, plaintiff served answers to interrogatories and responses to the notice to produce documents. Plaintiff also filed a motion to vacate the order that dismissed the complaint with prejudice and reinstate the complaint. Although defendant filed opposition, it was misfiled by the court. Unaware that opposition had been filed, the motion judge granted plaintiff's motion as unopposed. Upon discovering this error, the motion judge communicated with counsel and, after learning that defendant continued to oppose the relief sought, re-scheduled the motion for December 17, 2010.
At oral argument, plaintiff's counsel acknowledged that the motion to dismiss with prejudice had been received at his office but stated the motion had not been forwarded to his attention. The motion judge termed the failure an ...