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John Martinovich v. Wilfredo Iglesias and

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 23, 2012

JOHN MARTINOVICH, PLAINTIFF-APPELLANT,
v.
WILFREDO IGLESIAS AND DCFS TRUST, DEFENDANTS, AND ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3492-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 26, 2011

Before Judges Cuff and Lihotz.

Plaintiff John Martinovich appeals from an order denying reconsideration of an order dismissing with prejudice his complaint seeking underinsured motorist (UIM) benefits for failure to provide fully responsive answers to interrogatories and requests for production of documents. We reverse and remand for further proceedings.

The course of this litigation can only be described as tortured. Plaintiff was involved in a motor vehicle accident on July 23, 2003. After two false starts in June 2007 (the filing of a complaint and an amended complaint) and January 3, 2008 (the filing of an order to show cause for arbitration), plaintiff filed a verified complaint and order to show cause on July 2, 2009, seeking to compel defendant Allstate Insurance Company (Allstate) to proceed to arbitration to resolve his claim for UIM benefits. By order dated September 11, 2009, plaintiff was instructed to file an amended complaint to resolve his claim by a jury. Plaintiff did so but his complaint was dismissed the first time for failure to provide discovery on December 18, 2009.

The court denied plaintiff's motion for reconsideration of the December 2009 order on February 19, 2010. The court denied his motion to restore his amended complaint on April 16, 2010, and plaintiff filed a motion to reconsider this order. In response, Allstate filed a cross-motion to dismiss the amended complaint with prejudice. By order dated May 28, 2010, the court denied plaintiff's motion. In a separate order of the same date, the court granted Allstate's motion based on plaintiff's failure to provide discovery. Plaintiff's motion for reconsideration of the May 28, 2010 order dismissing his complaint with prejudice was denied by order dated August 6, 2010. Plaintiff appeals from the May 28, 2010 order dismissing his complaint with prejudice and the August 6, 2010 order denying reconsideration of the May order.

The record reveals that each time this matter was before the court, Allstate informed plaintiff about the precise discovery requests that remained outstanding. As late as April 6, 2010, counsel for Allstate informed the court that it had yet to receive plaintiff's policy of insurance or the declaration page from that policy. Because plaintiff lived with a sister at the time of the accident, Allstate sought insurance information about all resident relatives to obtain information about any and all pro rata contributions. Allstate also sought plaintiff's medical records occasioned by no less than seven accidents between November 1991 and August 5, 2006, as well as treatment in 1989 received for a low back condition. Allstate also sought documents related to litigation associated with some of the prior accidents. Plaintiff eventually executed authorizations to permit Allstate to obtain medical records from prior providers of medical treatment. Although the record reflects that plaintiff stated that he provided the personal auto insurance policy requested by Allstate, the documents actually produced were a Sport Bike Application and an insurance identification card. The documents contained no information about the coverage provided to plaintiff at the time of the 2003 accident. Plaintiff also informed Allstate that he lived alone at the time of the 2003 accident. In addition, the record reflects that plaintiff delivered to Allstate a large stack of documents the week before the return date of the May 2010 motion for reconsideration of the April 2010 motion to restore plaintiff's complaint.

A judge is vested with considerable discretion to grant or deny a motion for reconsideration. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). A motion for reconsideration is not a second or third opportunity to reargue a motion. Rather, it is designed for the limited purpose to seek review of a prior order when the judge has overlooked critical information or misapprehended information in the record or has overlooked relevant authority. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996); D'Atria, supra, 242 N.J. Super. at 401-02.

Given the limitations of a motion for reconsideration and the discretionary nature of the decision, our review of any order denying reconsideration is limited to abuse of discretion. Cummings, supra, 295 N.J. Super. at 389.

Here, the judge wrote on the August 6, 2010 order that the motion for reconsideration was denied for the "reason . . . set forth in the 5/28/10 order." That order recites that the matter is dismissed with prejudice "for failure to provide discovery." The May 28, 2010 companion order that disposed of plaintiff's motion for reconsideration of the April 16, 2010 order denying reinstatement of the amended complaint states "there is still outstanding discovery."

Rule 4:23-5 creates a two-tier sanction process. The first tier permits dismissal of the complaint or suppression of a pleading without prejudice. R. 4:23-5(a)(1). The dismissal or suppression may be vacated if the delinquent party moves for such relief before entry of an order of dismissal or suppression with prejudice, submits an affidavit that the discovery has been fully and responsively supplied, and pays a restoration fee. Ibid. The second tier permits dismissal with prejudice. R. 4:23-5(b). The principal purpose of this sanction process is to compel response to discovery not dismissal of the litigation. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 96 (App. Div. 2008); Pressler and Verniero, Current N.J. Court Rules, comment 1.1 to R. 4:23-5(a) (2012).

Dismissal of a complaint is the ultimate sanction. Therefore, the parties and this court anticipate an explanation for invocation of the ultimate sanction. Here, plaintiff's response to his discovery obligations can only be described as haphazard and lackadaisical. His initial response to Allstate's Form A and Supplemental interrogatories contained some information but also recited that information was "to be supplied" or "annexed hereto" but none of that information was supplied or annexed.

Allstate contends that plaintiff's response to its requests for documents and his response to its several motions fall into three categories. First, plaintiff states that the documents could not be located. Second, plaintiff reports that he has remitted to Allstate every document in his possession. Third, plaintiff refers Allstate's counsel to another source, such as a prior lawyer who might have relevant records. On the other hand, before oral argument on the parties' cross-motions, plaintiff stated that he had submitted, and Allstate conceded that it had received, a stack of documents. To be sure, the record suggests that plaintiff did not designate the interrogatory or the request to produce to which any document should be considered responsive, but it appears that plaintiff belatedly submitted considerable information. Plaintiff also argued that he had remitted to Allstate every document in his possession relevant to the July 2003 accident, which is the subject of this litigation, and all other accidents in which he has been involved.

Following oral argument, the motion judge stated that she would review the submissions of both parties and render a decision. The order simply recites that plaintiff was still delinquent. We appreciate that Allstate is frustrated at the slow pace of the litigation and the haphazard discovery process. On the other hand, neither Allstate nor the motion judge seemed to contemplate that plaintiff may not have any other information to produce and is not likely to ever obtain further information. Stated differently, while there may be gaps in the discovery provided by plaintiff, there may be nothing more that can be obtained through interrogatories and requests to produce documents. In that case, if plaintiff cannot produce further information, he must live with the consequences as it pertains to his ability to prevail on the merits of his UIM claim. Moreover, Allstate is not without a remedy. It may seek an order barring production of further documents. It may also file a motion for summary judgment.

We, therefore, reverse and remand for reconsideration of not only the motion for reconsideration but also the motion to dismiss plaintiff's amended complaint with prejudice. The motion judge must consider whether plaintiff has actually provided incomplete or unresponsive answers to discovery or has supplied all of the information he can muster. If it is the latter, dismissal with prejudice for failure to meet discovery obligations is not the appropriate action.

We would also be remiss if we did not note the absence in this record of any notice to plaintiff by his attorney of the order of dismissal without prejudice and an explanation of its consequences. The two-tier sanction process for failure to make discovery anticipates notice to the delinquent party by his counsel of the consequences of his omissions upon entry of the order of dismissal without prejudice. R. 4:23-5(a)(1). We have searched this record and found no evidence of compliance with this obligation. Moreover, when a party files a motion to dismiss a complaint with prejudice, the attorney for the delinquent party must prepare, file and serve an affidavit reciting that the client had been served with the initial order of dismissal without prejudice and the explanation of the consequences and has been served with the motion to dismiss with prejudice. R. 4:23-5(b). Neither the appendices submitted by either party nor the transcript of the oral argument of the motion reflect compliance with this obligation.

This obligation to inform the client of the consequences of failure to make discovery cannot be ignored. Recently, this court reiterated the importance of this obligation and the action that must be taken by the motion judge when presented with a motion to dismiss with prejudice for failure to make discovery. We held that, when a court considers a motion to dismiss or suppress a pleading with prejudice, and there is nothing before the court showing that a litigant has received notice of its exposure to the ultimate sanction, the court must take some action to obtain compliance with the requirements of the rule before entering an order of dismissal or suppression with prejudice.

Further the court must set forth what effort was made to secure compliance on the record or on the order. [A&M Farm & Garden Ctr. v. American Sprinkle

Mech., L.L.C., 423 N.J. Super. 528, 539 (App. Div. 2012).]

On remand, if the judge determines that plaintiff's discovery responses can be characterized as a failure to make discovery subject to the sanction of dismissal with prejudice of his amended complaint, the motion judge must assure compliance with the notice to litigant obligations of Rules 4:23-5(a) and (b).

Reversed and remanded for further proceedings consistent with this opinion.

20120223

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