April 9, 2012
HOWARD BROOKMAN, PLAINTIFF-APPELLANT,
TOWNSHIP OF HILLSIDE, HILLSIDE POLICE DEPARTMENT, ROBERT QUINLAN, WORRALL COMMUNITY NEWSPAPERS, INC., A NEW JERSEY CORPORATION, D/B/A UNION LEADER & LOCALSOURCE.COM, TONIANN ANTONELLI, AND RAYMOND WORRALL, DEFENDANTS-RESPONDENTS, AND STATE OF NEW JERSEY DEPARTMENT OF HEALTH & SENIOR SERVICES AND MICHAEL J. DOLAN, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1668-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically December 6, 2011
Before Judges Carchman and Baxter.
In this libel and slander action*fn1 arising from the arrest and indictment of plaintiff Howard Brookman, a licensed attorney, plaintiff appeals from an order of the Law Division dismissing his complaint with prejudice as a result of plaintiff's failure to comply with various discovery orders. We conclude that the trial judge did not abuse his discretion in dismissing the complaint, and accordingly, we affirm.
These are the relevant facts adduced from the record. On May 9, 2007, plaintiff was arrested by defendant Hillside Police Department and charged with obstruction of justice and hindering apprehension. On September 25, 2007, a Union County grand jury indicted plaintiff on the obstruction charge. He pled not guilty in December 2007.
Subsequently, on May 9, 2008, plaintiff filed a complaint against defendants Township of Hillside, Hillside Police Department, and Robert Quinlan (collectively referred to as the municipal defendants), as well as against Worrall Community Newspapers, Inc. d/b/a Union Leader & Localsource.com, Toniann Antonelli, and Raymond Worrall (collectively referred to as the newspaper defendants). Additionally, the New Jersey Department of Health & Senior Services and Michael J. Dolan, an employee of the New Jersey Office of the Public Guardian, were named as defendants.
In the complaint, plaintiff alleged that Robert Quinlan issued a press release stating that plaintiff "was arrested by Hilliside [sic] Police May 9 and charged with neglecting a 92-year-old" woman; plaintiff claimed that he was never charged with neglect. Plaintiff also alleged that the newspaper defendants displayed a false "teaser" on the front page of the May 17, 2007 edition of the Union Leader that stated "Three charged with neglect in Hillside." The subsequent article, entitled "Hillside Police Charge Three with Neglecting Elderly Woman," stated "[plaintiff] was arrested by Hillside Police May 9 and charged with neglecting a 92-year-old" woman. Plaintiff alleged that this statement constituted libel per se because it was "false and was made with knowledge of its falsity or with reckless disregard of the truth," and the statement "irreparably damaged" his reputation. Also, plaintiff explained that the newspaper defendants posted this article on the Internet at localsource.com. Plaintiff claimed that defendants should be held liable for invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.*fn2
On June 20, 2008, the newspaper defendants filed their answer to plaintiff's complaint; they denied that plaintiff had "fully, fairly and accurately set forth the contents of the subject publications" and demanded that the court dismiss plaintiff's complaint with prejudice. Then, on July 7, 2008, the newspaper defendants sent plaintiff a set of interrogatories and a request for the production of documents, via the Lawyers Service. The documents were sent to plaintiff's known address as listed on the complaint. On July 9, 2008, the interrogatories and request for the production of documents were returned to the newspaper defendants with a note on the envelope stating "PRIVATE/CLOSED." Soon thereafter, the interrogatories and request for the production of documents were re-sent to plaintiff by first class mail and certified mail. On August 4, 2008, the documents sent certified mail were returned to the newspaper defendants and stamped "UNCLAIMED." On August 5, 2008, the newspaper defendants sent the interrogatories and request for the production of documents by regular mail.
On that same day, the newspaper defendants sent plaintiff a notice of deposition for 10:00 a.m. on August 19, 2008, by regular mail; the notice was sent to the address listed on plaintiff's complaint as well as the address listed for plaintiff in the New Jersey Lawyer's Diary. Two weeks later, on August 18, 2008, at 3:10 p.m., plaintiff called the office of the newspaper defendants' counsel and told counsel's secretary that "he would not be appearing at the deposition" because "he had not heard about [it] until that day"; plaintiff refused to speak to any attorneys associated with the case. The next day, the newspaper defendants' counsel appeared for plaintiff's deposition; at 10:05 a.m., counsel placed a statement on the record describing the notice sent to plaintiff, plaintiff's phone call the previous day, and the fact that plaintiff did not appear at the deposition.
On August 21, 2008, the municipal defendants received a fax from plaintiff, instructing them not to release any police reports or photographs subpoenaed by the newspaper defendants because "the reports and photographs are the subject of an ongoing court case" and "neither the photographs nor the reports are relevant to the subject matter of this litigation." That day, the municipal defendants sent a letter to plaintiff, informing him that the subpoena required the production of the documents "on or before August 19, 2008" and while plaintiff's letter was dated August 18, 2008, it was faxed to the municipal defendants on August 21, 2008. Consequently, the municipal defendants did not have "sufficient notice to permit [them] to consider [plaintiff's] concerns." The municipal defendants moreover stated that "neither ground asserted by [plaintiff] justifies non-compliance with [the] subpoena" and because the documents are not under seal or subject to a protective order, they had produced the documents requested by the newspaper defendants. Further, the municipal defendants requested that plaintiff turn on the automatic header feature on his fax machine to indicate the transmission date and time, noting that this is the second fax the municipal defendants received from plaintiff "substantially after the date [he] indicated on the letter."
On September 16, 2008, the newspaper defendants moved to compel plaintiff's deposition; they sent a copy of their motion to plaintiff by regular mail and certified mail and had the motion personally served on plaintiff. The certified mail was returned to the newspaper defendants and marked "NOT DELIVERABLE AS ADDRESSED - UNABLE TO FORWARD." On September 24, 2008, the municipal defendants cross-moved not only to compel plaintiff's deposition, but also to provide a statement of damages. Judge Ross R. Anzaldi, then sitting in the Law Division, issued two orders on October 10, 2008: 1) compelling plaintiff's deposition and scheduling it for October 27, 2008 at 10:00 a.m.; and 2) requiring plaintiff to provide a statement of damages.
On October 15, 2008, the newspaper defendants sent plaintiff a copy of Judge Anzaldi's order by regular mail, certified mail, and personal service; the copy sent certified mail was returned as unclaimed. Also, on October 15, 2008, the municipal defendants sent a copy of Judge Anzaldi's order in their favor to plaintiff by FedEx and first class mail.
Plaintiff faxed a letter on October 23, 2008, dated October 22, 2008, to all defendants and Judge Anzaldi, stating that he "will be unable to attend" the court ordered deposition "due to a previously-scheduled court hearing." Plaintiff stated that "[i]f a deposition is to take place, it will have to be rescheduled to a mutually convenient date and time." Yet, plaintiff noted that it was his "position that the already undisputed and indisputable facts of this case militate in favor of summary judgment as to liability and, therefore, any deposition would be pointless." That day, the newspaper defendants attempted to fax plaintiff a letter, which stated if plaintiff failed to attend the deposition on October 27, they would "pursue all legal remedies available." None of the faxes could be transmitted to plaintiff as the transmittal sheet indicated "BUSY/NO SIGNAL." The newspaper defendants sent the letter regular mail and certified mail, but consistent with prior conduct, the certified mail was returned as unclaimed.
Plaintiff did not appear for the deposition on October 27, 2008, so at 10:30 a.m., counsel for the newspaper defendants placed a statement on the record stating that plaintiff failed to appear at the court-ordered deposition.
Both the newspaper and municipal defendants moved for an order enforcing litigants rights, pursuant to Rule 1:10-3, and an order dismissing plaintiff's complaint with prejudice, pursuant to Rule 4:23-2(b). Judge Anzaldi thereafter ordered that plaintiff's deposition must be completed by January 23, 2009, during normal business hours. The order stated that if the deposition is not completed by that time, then plaintiff's complaint would be dismissed without prejudice. The order required plaintiff to cure any violation within ninety days from dismissal without prejudice or the complaint would be dismissed with prejudice.
The deposition convened at 10:15 a.m. on January 19, 2009, in the offices of the municipal defendants' counsel. Plaintiff insisted that his brother, who is not an attorney nor a party to the lawsuit, sit in on the deposition. When counsel asked the brother to sit in the waiting room, the brother said plaintiff "can't stay here all day. He is going to have to leave with me also when I have to leave." Then, as the newspaper defendants' counsel was discussing the procedures associated with a deposition, plaintiff interrupted him and said "[b]efore we proceed with the deposition[,] I insist on receiving a copy of whatever was sent to me by FedEx."*fn3 The municipal defendants' counsel noted that the court order requiring this deposition was not "contingent upon [plaintiff] receiving any documents from [his] office"; however, he noted that his secretary was making a copy of the documents for plaintiff. Plaintiff responded by saying "[t]here are two ways to proceed. You could provide me copies of those FedEx documents now. . . . Or I can go to the Dowd Avenue FedEx depot and pick those up and return to the office and proceed at that time." The newspaper defendants' counsel then proceeded with the deposition instructions and told plaintiff he would have the documents before the municipal defendants' counsel deposed him.
At 1:00 p.m., plaintiff suggested that the parties should "break" and "pick another day" to resume the deposition because he had to take his brother to the doctor. The newspaper defendants' counsel responded that the parties would continue with the "court[-]ordered" deposition until "four o'clock or five" and finish that day. Plaintiff responded that he would like to "take a break." Defendants' counsel agreed to a fifteen-minute break. However, plaintiff then stated "[w]e may have to continue later on this afternoon or at another date," and the newspaper defendants' counsel responded "[w]e have to continue now."
At approximately 1:04 p.m., plaintiff left the deposition. At 1:06 p.m., plaintiff returned to the deposition room and again said that he had to "accompany [his] brother to a doctor's visit at this time." Plaintiff reiterated that he is "prepared to continue the deposition, but it would have to be at a mutually convenient time to all parties involved." He also said that if the deposition with municipal defendants' counsel is to proceed, counsel would have to give plaintiff "a copy of the discovery materials" sent by FedEx, which arrived when plaintiff was not at home and there was no one to sign for them. Plaintiff explained that he was going to FedEx headquarters to pick up the discovery, and "[a]s soon as that task is completed, [he] will do [his] best to return to the office;" but, plaintiff did not know if he would be returning that day "or another day." The newspaper defendants' counsel reiterated that plaintiff "knew full well . . . at the outset that this was going to take a full day," so it was not appropriate for plaintiff to say he had to "accompany [his] adult brother to a doctor's office" three hours into the deposition. It was also revealed that plaintiff had known about the doctor's appointment since the previous weekend but chose not to tell defendants' counsel. Then, the municipal defendants' counsel handed plaintiff a copy of the discovery sent through FedEx. Plaintiff then changed course and stated that he needed to leave the deposition to "review the discovery that was just supplied to" him and because he was not feeling physically well. At 1:20 p.m., plaintiff left the room and then reentered. He said he was "going to continue," but he wanted to take "an hour lunch break and . . . [then] resume." The parties agreed to return to the room at 2:20 p.m.
The deposition did not resume because at 2:25 p.m., defendants' counsel received a call from plaintiff's brother who said he was at the doctor's office with plaintiff. Plaintiff's brother said plaintiff "asked [him] to give [defendants' counsel] a courtesy call . . . to tell [them] that [they] have to schedule this [deposition] for another day." Defendants' counsel asked to speak to plaintiff, but plaintiff's brother refused to put plaintiff on the phone. The phone call terminated at approximately 2:36 p.m. The newspaper defendants' counsel said they had "no alternative but to conclude the deposition today, since the witness has not returned from the lunch break and advises he would not be returning." The deposition concluded at 2:40 p.m.
All defendants moved for an order enforcing litigants' rights pursuant to Rule 1:10-3 and for an order dismissing plaintiff's complaint with prejudice pursuant to Rule 4:23-2(b). In a certification, the municipal defendants noted that plaintiff failed to respond to their first set of interrogatories and first demand for the production of documents, which were sent on October 29, 2008; they reminded plaintiff the responses were overdue on January 13, 2009.
Judge Anzaldi dismissed plaintiff's complaint without prejudice and ordered that plaintiff had "90 days from the date of [the] Order [March 13, 2009] to complete his deposition and provide good faith responses to the demands for discovery propounded upon him by the Newspaper Defendants and the Municipal Defendants." If plaintiff failed "to cure each of his discovery violations," the judge declared that plaintiff's complaint would be "dismissed with prejudice on motion."
Plaintiff moved for reconsideration of Judge Anzaldi's order dismissing his complaint without prejudice or to reinstate the complaint and for leave to amend it. The judge denied this motion and reminded plaintiff that he "must purge himself of the discovery deficiencies outlined by the court on the record on March 13, 2009 and then move to [r]estore his [c]omplaint by [m]otion."
Then, on April 30, 2009, plaintiff responded to the municipal defendants' first set of interrogatories. Both the municipal and newspaper defendants advised the judge that plaintiff's "answers are wholly deficient," and he "still has not provided his responses to the . . . First Demand for Production of Documents." The newspaper defendants also asserted that plaintiff's responses were not made in good faith.
On June 10, 2009, plaintiff moved to restore and reinstate his complaint. All defendants countered with a motion to dismiss the complaint with prejudice. On the court's motion and with notice to both plaintiff and defendants, the judge changed the return date to July 17, 2009; plaintiff confirmed that he knew that the motions "have been scheduled returnable on July 17, 2009."
Plaintiff did not appear in court on the scheduled return date of the motion. At the hearing, Judge Anzaldi noted that plaintiff "was aware that the matter was on." In addition to plaintiff's letter acknowledging the return date as July 17, 2009, the judge's law clerk "reached out to make sure that everybody had notice" of the hearing. The law clerk called plaintiff's home and spoke with plaintiff's mother who said she had "difficulty reaching out" to plaintiff. Then, plaintiff's brother called chambers and said plaintiff "needs more time" and "[d]id not receive enough notice." The judge concluded that the motion would be heard because plaintiff "knew it was on for" July 17, 2009, and he was "satisfied [plaintiff] had enough time." The judge noted that plaintiff still had not completed his deposition despite the "extensive period of time involved," and plaintiff "has been less than forthcoming" throughout the litigation. The judge granted defendants' motions dismissing plaintiff's complaint with prejudice, and thereafter, denied plaintiff's motion to restore the complaint.
Following various unsuccessful motions for reconsideration, this appeal followed.*fn4
On appeal, plaintiff argues that the judge erred by dismissing his complaint with prejudice.
We have carefully considered plaintiff's various arguments in support of the appeal and we conclude that they are without merit. R. 2:11-3(e)(1)(E). We add some brief additional comments.
While plaintiff would cast the issues as a dispute over answers to interrogatories, plaintiff has failed to comply with orders including a mandated deposition. Plaintiff engaged in self-help. He voluntarily chose to remove himself from a court-ordered deposition on the pretense that he had to take his brother to the doctor. The deposition was never completed. He failed to respond to document requests, and, although not fully adjudicated, his answers to interrogatories were arguably insufficient. The final indignity according to the judge was plaintiff's failure to appear on the motion to dismiss without prejudice. If this were an isolated incident, the court's lack of indulgence would be tested; however, plaintiff's conduct, all taken as a whole, is clearly obstructionist and not designed to move discovery and the litigation forward to ultimate resolution.
Our standard of review "for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion . . . ." Abtrax Pharm., Inc. v. ElkinsSinn, Inc., 139 N.J. 499, 517 (1995).
"Discovery rules are designed to further the public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation." Id. at 512 (internal quotation marks and citation omitted). In addition, they are "designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments rest upon real merits of the causes and not upon the skill and maneuvering of counsel." Ibid. (internal quotation marks and citation omitted). If "discovery rules are to be effective, courts must be prepared to impose appropriate sanctions for violations of" these rules. Ibid.
An example of a sanction is Rule 4:23-2(b), which states: "If a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just," such as "[a]n order . . . dismissing the action or proceeding . . . with or without prejudice . . . ." This sanction "is generally not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious." Abtrax Pharm., Inc., supra, 139 N.J. at 514 (internal quotation marks and citation omitted). A party invites this sanction, dismissal with prejudice, "by deliberately pursuing a course that thwarts persistent efforts to obtain the necessary facts." Id. at 515. This is what happened here.
We are satisfied that plaintiff's conduct supports the judge's order and conclude that Judge Anzaldi did not abuse his discretion.