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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...