August 28, 2012
DEMETRIUS JOHNSON, PLAINTIFF-APPELLANT,
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8730-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 14, 2011
Before Judges A. A. Rodriguez and Fasciale.
Plaintiff, Demetrius Johnson, appeals from the January 7, 2011 order dismissing with prejudice his lawsuit against New Jersey Manufacturers Insurance Company (NJM), and the February 18, 2011 order denying the motion to reinstate the complaint. We affirm.
The complaint alleges that Johnson bought a Breitling watch for $17,655 from the Jewelry Exchange in Wayne. The watch was appraised at a value of $19,500. Months later, Johnson purchased a men's diamond bracelet from the Jewelry Exchange for $13,375. On the same day, an appraiser valued the bracelet at $17,500. Johnson then purchased an insurance policy from NJM for the bracelet and the watch.
Johnson claims that on October 26, 2008, he was leaving Mohawk Elk Lounge in Plainfield around 1:07 a.m. when an unknown male approached him from behind and placed on object on Johnson's back. Johnson believed the object to be a knife or a gun. The man then robbed Johnson of his watch, bracelet, wallet and paycheck.
Johnson reported the incident to the Plainfield Police Department and filed a claim with NJM under his policy. NJM denied Johnson's claim because of the suspicious circumstances surrounding it. NJM noted that Johnson filed a claim for a similar watch he lost in December 2007, and NJM provided coverage for the item.
After denial of his claim, Johnson filed a lawsuit against NJM. In its answer, NJM asserted a counterclaim for violation of the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30.
On April 1, 2010, NJM advised Johnson that his answers and response to the notice to produce were overdue. NJM did not receive a response. NJM again advised Johnson that the responses were overdue on June 3, 2010. In accordance with Rule 1:6-2(c), NJM indicated it preferred to obtain discovery without a court motion, but if Johnson did not respond to the requests, NJM would file a motion. NJM again received no response.
NJM moved to dismiss Johnson's complaint without prejudice for failure to provide discovery. The motion was unopposed and granted by Judge Edward J. Ryan. However, Johnson still did not provide any discovery or move to restore the complaint within sixty days as mandated by Rule 4:23-5.
On September 23, 2010, NJM moved to dismiss Johnson's action with prejudice. Johnson did not file an opposition within eight days of the motion's date, as required by Rule 1:6-3(a), nor did he comply with the certification requirement of Rule 4:23-5(a)(2).
On October 11, 2010, Johnson faxed answers to interrogatories to NJM. Johnson did not respond to NJM's notice to produce documents. On October 13, 2010, two days before the motion to dismiss return date, Johnson served a cross-motion to reinstate Johnson's answers to interrogatories. The judge never received a copy of this motion.
At the motion hearing, Johnson explained that both his aunt and cousin had recently passed away and he was therefore unable to complete the interrogatories and document requests. The judge concluded exceptional circumstances existed and ordered Johnson to provide fully responsive answers to NJM's discovery requests within thirty days without any additional extension of time.
NJM did not receive any discovery from Johnson. NJM filed another motion to dismiss with prejudice. Johnson served NJM with a "Cross Notice of Motion to Compel Discovery," which sought to obtain more specific interrogatory answers from NJM. Johnson also faxed NJM a letter on December 30, 2010, indicating that NJM was in default of its discovery obligations from Johnson's second demand for production of documents.
On January 7, 2011, Judge Ryan heard the motion to dismiss. Johnson maintained that all of his answers to interrogatories were sufficient, and NJM had not complied with the discovery requests. Johnson argued that he planned on only using the following documents at trial: (1) an appraisal dated February 15, 2008; (2) an appraisal dated May 1, 2008; (3) a police report of the incident of October 26, 2008; (4) a letter from Mohawk Lodge #307 dated February 23, 2009 stating that Johnson patronizes the Lodge as a guest; (5) receipts for the two items of jewelry claimed to have been stolen; and (6) a copy of a Policy of Insurance with NJM that covered the claimed items. Johnson provided that he gave the documents to NJM on October 11, 2010, and that these documents represent his only proofs for the case. Johnson also claimed that he provided NJM with the jewelry appraisers' addresses to the best of his ability. NJM indicated that the matter is currently under investigation by the fraud department of the Department of Banking and Insurance, which precluded the release of any documents Johnson requested.
Judge Ryan granted the motion to dismiss with prejudice, finding that Johnson failed to answer the interrogatories and failed to comply with the judge's previous order. Johnson filed a motion to reconsider, which Judge Ryan denied without an opinion.
On appeal, Johnson contends that "Judge Ryan abused his discretion in dismissing [Johnson's] complaint with prejudice despite [Johnson's] having provided responses to [NJM's] discovery requests[,] and due process and fundamental fairness require reversal." We disagree.
Generally, "the standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion, a standard that cautions appellate courts not to interfere unless an injustice appears to have been done." Abtrax Pharmaceuticals Inc. v. Elkins-Sinn Inc., 139 N.J. 499, 517 (1995). This standard takes into consideration how the severity of a dismissal for discovery violations may influence the court and cause the review to be conducted in hindsight. Ibid.; Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642, 96 S. Ct. 2778, 2780, 49 L. Ed. 2d 747, 751 (1976). It is important for courts to grant sanctions, such as dismissal, in order to maintain the efficacy of the court rules by not allowing constant exceptions, and also to uphold the impact on civil practice by strictly enforcing the mandates. Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 196 (App. Div. 1985). Moreover, dismissal not only penalizes "those whose conduct warrants it, but [also operates] to deter others who may be tempted to violate the rules absent such a deterrent." Ibid.
Judged by this standard, we affirm the dismissal with prejudice, as the record is replete with supporting evidence of Johnson's discovery misconduct and absent evidence of discretionary abuse. There is simply no basis for Johnson to argue that an injustice occurred.
The record establishes Johnson's failure to comply with and disregard of NJM's discovery requests and New Jersey's discovery rules, even after court intervention. Johnson adopted a course of blatantly ignoring discovery dates and court orders, conduct that constitutes behavior justifying dismissal. Not only did Johnson fail to initiate mediation proceedings as required by his NJM policy, he also disregarded a court order following dismissal proceedings. Even after the court order, Johnson still inexplicably failed to adhere to the discovery demand and did not provide fully responsive answers to NJM within thirty days. The court intervention itself belies Johnson's assertion that he fully complied with all discovery requests. Johnson cannot establish that Judge Ryan abused his discretion in granting dismissal because it is undeniable that Johnson failed to obey discovery requests and court orders.
Johnson also challenges Judge Ryan's dismissal on the basis that he "has fully complied with all of [NJM's] discovery requests and his only deficiency is one of form over substance." After reviewing Johnson's answers to interrogatories, it is clear that he did not fully comply with NJM's request for information.
In his complaint, Johnson alleged that NJM "intentionally, recklessly and carelessly made material misrepresentations in order to induce [Johnson] to enter into and then to continue their contractual and business relationship with [NJM]." Yet, in his interrogatory answers, Johnson failed to identify what material misrepresentations he relied on, or how NJM intentionally made such statements to induce the insurance contract, or what business relationship exists between the parties. He instead reasserted the same claim, and states that the underlying basis exists without identifying specifically what act, statement, or other incident constitutes the actual grounds for this claim.
Similarly, Johnson's complaint claimed that NJM "breached the duty of good faith and loyalty owed to [Johnson] by intentionally denying NJM Claim No. 08-362264 which constitutes an overt and blatant malicious breach." When asked for the basis of this claim, Johnson's answer only repeated the exact language from his complaint without providing any additional information. Johnson's failure to present fully responsive answers to interrogatories, coupled with his repeated overt noncompliance of New Jersey's discovery deadlines and his disregard of the court's discovery order, render Judge Ryan's dismissal with prejudice an appropriate action.
Additionally, Johnson counters that "[NJM] was not entitled to seek dismissal with prejudice pursuant to Rule 4:23-5 since they have not provided one single document in response to [Johnson's] numerous demands for documents nor have they answered interrogatories."
Johnson alleges in his brief that pursuant to Rule 4:23-5(a)(2), NJM cannot move to dismiss unless it provides an affidavit to certify NJM is not in default of Johnson's discovery demands. His brief quotes the New Jersey Court Rules as support for this contention; however, he erroneously cites from which rule he is deriving his argument. Johnson's argument is misplaced here, as the cited affidavit requirement applies to Rule 4:23-5(a)(1), dismissal without prejudice, which is not challenged in this matter. The affidavit mandate does not impact Rule 4:23-5(a)(2), which governs dismissal with prejudice.
Regardless of Johnson's error, NJM is precluded from providing documents due to the ongoing fraud investigation that culminated in a Grand Jury indicting Johnson in this context. The court and the litigants were aware that NJM's Special Investigation Unit reported Johnson's claim to the Office of Insurance Fraud Prosecutor. Pursuant to N.J.S.A. 17:33A-11, "papers, documents, reports or evidence relative to the subject of an investigation under this act shall not be subject to public inspection." These records are not subject to a subpoena without commissioner consent, or after a hearing before a court. N.J.S.A. 17:33A-11. Thus, NJM rightfully could not produce the documents Johnson sought because of the ongoing fraud investigation.
Johnson lastly contends that the court should have granted a stay if NJM is truly entitled to withhold the documents. Johnson did not request a stay from Judge Ryan and raises this issue for the first time on appeal. New Jersey appellate courts "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available." State v. Robinson, 200 N.J. 1, 20 (2009). Clearly, Johnson did not ask for a stay during the trial court hearing, so this final contention is without merit.
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