March 20, 2019
appeal from Superior Court of New Jersey, Law Division,
Hudson County, Docket No. L-3095-16.
Jessica A. Tracy argued the cause for appellants (Curcio
Mirzaian Sirot, LLC, attorneys; Jessica A. Tracy, of counsel
and on the briefs).
F. Ball argued the cause for respondents (Weber Gallagher
Simpson Stapleton Fires & Newby, LLP, attorneys; Robert
F. Ball, of counsel and on the brief; Mark J. Heftler, on the
Judges Nugent, Reisner, and Mawla.
appeal several orders culminating in the involuntary
dismissal at trial of their action against defendants
alleging breach of a home improvement contract and consumer
fraud. The trial judge granted defendants' motion for an
involuntary dismissal because plaintiffs could not prove
damages. Plaintiffs could not prove damages because another
judge had granted defendants' pretrial motion to bar
plaintiffs' damage claims as a sanction for failing to
respond to defendants' notice to produce documents.
judge who granted defendants' pretrial motion for
sanctions, including their request to bar expert testimony,
did so even though defendants had filed the motion in
violation of multiple court rules. Defendants filed the
motion belatedly, without demonstrating good cause to do so,
and despite their never having demanded an expert report from
plaintiffs. They did not certify they were not delinquent in
their discovery obligations, which they were, as they had not
responded to plaintiffs' discovery. They also disregarded
the rule requirements that are prerequisites to having a
motion for discovery sanctions listed for disposition.
grant of defendants' motion despite their multiple
missteps resulted in the functional equivalent of a dismissal
of plaintiffs' complaint with prejudice for a discovery
violation; a sanction the Supreme Court has characterized as
"drastic" and has cautioned against imposing if a
lesser sanction will suffice. Abtrax Pharm., Inc. v.
Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995). Perhaps
more significantly, the sanction could be viewed as the
uneven-handed administration of court rules, resulting in an
unjust determination and the needless expenditure and delay
caused by a meaningless trial; all anathema to the purpose
for which the rules exist. See R.1:1-2. We thus
reverse and remand for further proceedings.
civil action arose out of a home improvement contract, which
plaintiffs alleged defendants failed to complete, leaving
them with an uninhabitable house. Plaintiffs filed a
six-count complaint in August 2016, and defendants filed an
answer and counterclaim the following month. Defendants
served plaintiffs with requests for admission and a notice to
produce documents, including documentary evidence of
plaintiffs' damage claim. Defendants did not serve
interrogatories. Their demand for documents did not demand
experts' reports. Plaintiffs served defendant with
interrogatories and a notice to produce documents. None of
the parties answered discovery.
discovery end date was July 25, 2017. In October the parties
proceeded to mandatory arbitration as required by
Rule 4:21A-1(a)(3). The arbitrator rendered an award
for plaintiffs. Defendants rejected the award and demanded a
trial de novo, as permitted by Rule 4:21A-6(b)(1).
Two weeks after arbitration and three months after the
discovery end date, defendants filed the motion that resulted
in the orders from which plaintiffs have appealed. Plaintiffs
filed a cross-motion seeking an order "Extending
Discovery with Consent of All Parties."
entitled their motion for discovery sanctions "Motion
for Plaintiffs' Failure to Serve Discovery and to Bar
Plaintiffs' Late Service of Liability or Damage Experts
Reports Pursuant to Rule 4:23-5(3)(b) [sic]."
They supported the motion with a certification from their
attorney. In his certification, the attorney did not explain
why he did not file the motion before the discovery end date.
He summarized the pleadings, explained plaintiffs had not
responded to defendants' requests for admission and
notice to produce documents, and omitted to disclose
defendants had not responded to plaintiffs'
interrogatories and notice to produce documents.
informed the motion judge in their cross-motion that
defendants had not responded to plaintiffs' discovery
demands. Nevertheless, the judge granted defendants'
motion and denied plaintiffs' cross-motion. He barred
plaintiffs from presenting any evidence of damages not
documented during discovery, knowing plaintiffs had produced
no such documentary evidence, as attested to by defendants in
their motion. He gave this explanation, typed below his
signature on the order: "The [discovery end date]
expired on July 25, 2017. The documents sought to be
introduced were only made available on the eve of
arbitration. This results in substantial and undue prejudice
to the [d]efendant[s]."
motion judge denied plaintiffs' motion for
reconsideration. In the decision he delivered from the bench
at the close of oral argument, the judge noted that
"discovery rules are designed to reach the substantive
merits of a matter rather than permitting reliance on
procedural mechanisms that might result in concealment and
surprise." He did not, however, cite to any rule
concerning the timing of motions seeking sanctions for
discovery violations, nor did he cite to the requirements of
any rule authorizing such sanctions. Citing Abtrax,
100 N.J. at 521, for the proposition that the
"underlying purpose [of the discovery rules] is to
assure full disclosure of all material facts and documents to
the parties, to the end the trial will serve the ends of
justice rather than function as a trap for the unwary,"
the judge neither noted nor discussed defendants'
violation of the same discovery rules and consequent
undermining of their purpose.
the representation of plaintiffs' counsel that his
non-compliance with discovery was not intended to obfuscate
the issues in the case, the judge explained:
The fact still remains that the prejudice that will result in
this case, both procedurally and also substantively,
particularly since the discovery end date has passed, is not
persuasive to the [c]ourt to allow for reconsideration of
this case or this particular matter ...