September 27, 2012
RHONDA REED-MONTIJO, PLAINTIFF-APPELLANT,
ORANGEL RODRIGUEZ, AMERICAN LIMO SERVICES, LLC, GWENDOLYN PADILLA, TRI-COUNTY PEOPLE CORP., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-108-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Harris and Hoffman.
Plaintiff Rhonda Reed-Montijo appeals from three Law Division orders: (1) the October 15, 2010 order extending discovery; (2) the September 6, 2011 order denying her motion to reinstate the amended complaint, which had been dismissed at the trial call four months earlier; and (3) the October 6, 2011 order denying reconsideration and dismissing the amended complaint with prejudice. We (1) affirm the order extending discovery; (2) reverse the order denying reinstatement and dismissing the amended complaint with prejudice, and remand for trial; and (3) treat the order denying reconsideration as moot.
On December 20, 2008, Reed-Montijo was involved in a motor vehicle accident with defendant Orangel Rodriguez, who was operating a vehicle owned by defendant American Limo Services, LLC (the Rodriguez defendants). A complaint was filed against these defendants less than three weeks later, on January 5, 2009, in the Essex vicinage of the Law Division.
Two weeks after that, on January 20, 2009, Reed-Montijo was involved in another motor vehicle accident with defendant Gwendolyn Padilla, who was operating a vehicle owned by Tri-County People Corp. (the Padilla defendants). Reed-Montijo did not immediately sue the Padilla defendants, but she eventually moved to amend the complaint to add claims against them, which was granted on November 6, 2009. The amended complaint was filed on November 19, 2009. Even though new parties were added to the litigation following the filing of the amended complaint, discovery was not automatically extended. Cf. R. 4:24-1(b). By February 8, 2010, all defendants had answered the amended complaint and discovery was being processed, albeit with some difficulty.
On March 31, 2010, the court scheduled mandatory, non-binding arbitration for May 12, 2010. To accommodate the late addition of the Padilla defendants to the litigation, the discovery period was extended sixty days by court order on April 30, 2010, and the arbitration date was subsequently adjourned several times. However, even though discovery still remained incomplete, the arbitration finally occurred on September 28, 2010.
On September 28, 2010, the Padilla defendants moved to extend the discovery deadline a second time because a variety of discovery materials had not yet been collected, and Reed-Montijo had not been examined by defendants' medical experts. On October 15, 2010, the court granted the motion to extend discovery for ninety days.*fn1
On October 21, 2010, the Padilla defendants rejected the arbitration award and made a demand for a trial de novo. On October 27, 2010, notice of a January 18, 2011 trial date was transmitted to the parties.
On December 28, 2010, still within the ninety-day discovery extension, the Padilla defendants filed a motion to compel Reed-Montijo to appear for a medical examination. The Rodriguez defendants filed a cross-motion for the same relief.
On January 14, 2011, a separate plaintiff, Denise Rudeau, filed a complaint against the Padilla defendants regarding the same January 20, 2009 motor vehicle accident that Reed-Montijo had been litigating for over a year.
The Padilla defendants requested an adjournment of the January 18, 2011 trial date since their motion to compel was not scheduled to be considered until January 21, 2011. The request for the trial adjournment was denied by the civil presiding judge, and all parties were ordered to appear on the January 18, 2011 trial date. When Reed-Montijo's counsel failed to attend the trial call, defendants were asked by the judge to contact Reed-Montijo's counsel and consent to an adjournment until March 28, 2011. This was accomplished without incident.
On January 21, 2011, a different judge issued orders compelling Reed-Montijo to appear for two different medical examinations -- one scheduled for January 26, 2011, and the other for February 10, 2011.
On March 11, 2011, the Padilla defendants moved to consolidate the recently-filed Rudeau case with the Reed-Montijo case. The return date for the motion was April 1, 2011, four days after the Reed-Montijo trial date.
On March 28, 2011, when Reed-Montijo's attorney failed to appear at the previously-scheduled trial call, Reed-Montijo's amended complaint was dismissed without prejudice by the civil presiding judge. There is no written order in the appellate record memorializing this event, but the parties do not dispute that such a dismissal was entered.
After receiving written correspondence from defense counsel that his client's amended complaint had been dismissed at the March 28, 2011 trial call, Reed-Montijo's counsel claims that he telephoned a staff member in the civil division manager's office on March 30, 2011, who informed him that the Reed-Montijo case, in fact, had not been dismissed. There is no written memorialization of this event, and Reed-Montijo's counsel does not assert that he was given a new date for the trial.
On appeal, Reed-Montijo's counsel contends that he expected defense counsel to request an adjournment of the trial because of the then-pending motion to consolidate the Reed-Montijo case with the Rudeau case. Counsel for the Padilla defendants states that there was no agreement to request an adjournment and no reasonable expectation that such would occur.
Reed-Montijo moved four months later, on August 1, 2011, to reinstate the amended complaint, which the Padilla defendants opposed. The motion was fully briefed by both Reed-Montijo and the Padilla defendants. Reed-Montijo's sole argument for reinstatement was that there was a miscommunication about whether defense counsel would seek to adjourn the March 28, 2011 trial, which Reed-Montijo's attorney stated was his understanding. The hearing on the motion to reinstate was held on September 6, 2011. Reed-Montijo's counsel did not attend the hearing.*fn2 The motion judge denied the motion, writing on the order: "No grounds sufficient to justify reinstatement provided."
Reed-Montijo immediately filed a motion for reconsideration. On September 23, 2011, the Padilla defendants filed opposition and a cross-motion to dismiss the amended complaint with prejudice. On October 6, 2011, the motion judge denied the motion for reconsideration and granted the motion to dismiss the amended complaint with prejudice. This appeal followed.
Our standard of review for the issues on appeal is an abuse of discretion. An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Thus, "a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue." Ibid.
We first address the dismissal issue. Rule 1:2-4(a) provides that "[i]f without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar, . . . or on the day of trial, . . . the court may order . . . (c) the dismissal of the complaint[.]"
Our decisional law is focused on narrowly framing the contours of Rule 1:2-4.
The dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except . . . where the refusal to comply is deliberate and contumacious. Where the circumstances are less aggravated the court should give the offending party another opportunity . . . to comply with the order. [Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339-40 (1951)(citation omitted).]
Additional cases further ensure that neither pro se litigants nor children are negatively impacted. See Connors v. Sexton Studios, Inc., 270 N.J. Super. 390 (App. Div. 1994) and Essex Cnty. Div. of Welfare v. J.S., 205 N.J. Super. 244 (App. Div. 1985).
"Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will erase the prejudice suffered by the non-delinquent party." Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995) (quoting Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 345 (1984)).
Reed-Montijo's counsel provides very little explanation for his failure to attend both the January 18, 2011 and the March 28, 2011 trial dates, save misunderstandings during communications with opposing counsel. In fact, failure to appear for scheduled court dates appears to be a theme for Reed-Montijo's counsel, as he failed to attend oral argument for his client's September 6, 2011 motion for reinstatement.
[While t]he Rules provide for reasonable alternatives that should be explored when a party is unable or unwilling to participate in those steps integral to a fair trial[,] . . . parties and the trial courts should bear in mind that "[w]hen a plaintiff fails to [appear], he subjects himself to the list of sanctions referenced in Rule 1:2-4(a), one of which is dismissal of the complaint." [Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 406 (2009) (quoting Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005)).]
In fact, "[a] willful failure to appear by an attorney ordered to do so may constitute . . . a violation of this rule[.]" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:2-4(a) (2012).
Notwithstanding the foregoing, our courts are committed to, among other things, fairness and quality service. The judiciary must strive to follow a policy in favor of generally deciding contested matters on their merits rather than based on procedural deficiencies. See Woodward-Clyde Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464, 472-74 (1987). "'Cases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available.'" Irani, supra, 281 N.J. Super. at 387 (quoting Connors, supra, 270 N.J. Super. at 395).
We held many years ago that "[n]o eagerness to expedite business, or to utilize fully the court's time, should be permitted to interfere with our high duty of administering justice in the individual case." Pepe v. Urban, 11 N.J. Super. 385, 389 (App. Div.), certif. denied, 7 N.J. 80 (1951). Nothing has occurred in the fifty years since to suggest that we should now favor expedience over the interests of justice. See State v. Cullen, ___ N.J. Super. ___, ___ (App. Div. 2012) (slip op. 8-9). We are reluctant to bar the courthouse door in these circumstances and turn Reed-Montijo away from a decision on the merits of her case due to the shortcomings of counsel. See Kohn's Bakery, Inc. v. Terracciano, 147 N.J. Super. 582, 585 (App. Div. 1977).
We well understand the Law Division's need to control its schedule and to enforce court rules and scheduling orders. However, the Law Division had other options to address its reasonably well-founded assessment that the matter was not progressing appropriately. Under Rule 1:2-4, the court could have imposed monetary sanctions for Reed-Montijo's self-created failure to prosecute.*fn3 We make no determination as to whether such sanctions should have been imposed, and we hasten to add that the purpose of such sanctions is to provide incentive for compliance rather than to punish a litigant or attorney. We refer to monetary sanctions only to indicate that alternatives to dismissal of Reed-Montijo's amended complaint were available to the court to enforce its orders. Accordingly, we reverse and remand for trial.*fn4 We do not retain jurisdiction.
We next turn to Reed-Montijo's claim that the ninety-day discovery extension entered on October 15, 2010, was erroneous. Rule 4:24-1(c) governs motions for extensions of time for discovery. In relevant part, it states "[n]o extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." R. 4:24-1(c).
Exceptional circumstances require something more than mere attorney negligence or inadvertence. O'Donnell v. Ahmed, 363 N.J. Super. 44, 51-52 (Law Div. 2003). "A precise explanation that details the cause of delay and what actions were taken during the elapsed time is a necessary part of proving exceptional circumstances as required by R. 4:24-1(c) to extend discovery after a trial or arbitration date is set." Bender v. Adelson, 187 N.J. 411, 429 (2006). A four-part test to determine if exceptional circumstances have been met was set forth in Rivers v. LSC Partnership, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J. 296 (2005):
(1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time. [Ibid. (citing Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003)).]
The Padilla defendants' attorney certified that despite diligent efforts, defendants still had "not received all [of plaintiff's] medical records and need[ed] to retain a medical expert to conduct an independent medical examination of the plaintiff." Further, defense counsel stated that "retaining such [an] expert is necessary to properly defend the interests of [their] clients."
The record supports the motion judge's exercise of discretion under the Rivers criteria. Defendants were still awaiting Reed-Montijo's medical records, which had been requested on March 15, 2010, and the delay in receiving them was outside defendants' control. There were diligent efforts made to both obtain those records and retain a medical expert. Given that the underlying claims against defendants revolved around injuries sustained during two motor vehicle accidents, receipt and careful review of all medical records were essential.
The motion judge was well within his discretion when granting the discovery extension. Doing so did not create the problem of "last-minute or 'eve of trial' adjournments by reason of incomplete discovery" that Rule 4:24-1(c) was designed to prevent. Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003).
Affirmed in part; reversed in part; and remanded for trial.