Opinion
DOCKET NO. A-4245-11T4
02-19-2013
ANTHONY J. GIRARD, Plaintiff-Appellant, v. EDWARD G. FOSTER, ESQ. Defendant-Respondent.
Gary R. Matano argued the cause for appellant (Jeffrey Samel & Partners, attorneys; Mr. Matano, on the brief). Danielle M. Hughes argued the cause for respondent (Callan, Koster, Brady & Brennan, LLP, attorneys; Ms. Hughes and William Brennan, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-56-11.
Gary R. Matano argued the cause for appellant (Jeffrey Samel & Partners, attorneys; Mr. Matano, on the brief).
Danielle M. Hughes argued the cause for respondent (Callan, Koster, Brady & Brennan, LLP, attorneys; Ms. Hughes and William Brennan, on the brief). PER CURIAM
This appeal involves (1) a pro se litigant's purported failure to comply with discovery obligations and (2) Rule 4:23-5(a)(2)'s dismissal sanction. Plaintiff Anthony J. Girard, now represented by counsel, appeals from the Law Division's March 23, 2012 dismissal with prejudice of his legal malpractice action due to uncured discovery delinquencies. Because we are satisfied that the motion judge incompletely applied our jurisprudence regarding such discovery sanctions, we reverse and remand for further proceedings.
As we will outline, the motion judge was extraordinarily patient and understanding of plaintiff's circumstances during each of the three hearings conducted in this matter. We have no quarrel with that conduct whatsoever, and commend such judicious behavior to judges faced with similar situations where pro se litigants attempt to navigate the intricacies of litigational discovery.
I.
The facts of the underlying legal malpractice action — which we need not narrate — are ancillary to the present appeal.
Plaintiff's pro se complaint in the Law Division was filed in January 2011. Defendant Edward G. Foster filed his answer in May 2011. The discovery process properly self-started in late July 2011, without the stimulus of a case management conference.
On July 28, 2011, defendant's attorney served interrogatories (consisting of twenty-seven questions with multiple subparts), a request for admissions, and a notice to produce documents for inspection (requesting twenty-three discrete areas of inquiry) on plaintiff. Although plaintiff replied to the request for admissions and forwarded an affidavit of merit to defendant's counsel, he neither responded to the requests for documents nor supplied answers to interrogatories. Responses to the notice to produce were due in early September, and answers to the interrogatories were due later in the month. See R. 4:18-1(b)(2) (requestee shall serve a written response to a notice to produce within thirty-five days after service of the request); R. 4:17-4(b) (requiring service of answers to interrogatories within sixty days).
On August 30, 2011, before the time expired for compliance with defendant's discovery demands, defendant's attorney wrote plaintiff demanding the discovery materials, and warned that motion practice would ensue after October 6, 2011, "if the outstanding discovery has not been timely provided." True to this warning, on October 10, 2011, defendant's counsel filed a motion — returnable on November 4, 2011 — to dismiss plaintiff's complaint "without prejudice for failure to answer interrogatories and failure to respond to defendant's notice to produce." Plaintiff neither submitted opposition to the motion nor complied with the discovery demands. On November 28, 2011, the Law Division entered an order granting the motion, and the order was served on plaintiff in early December.
On February 6, 2012, defendant's attorney filed a follow-up motion — returnable on March 2, 2012 — seeking to dismiss plaintiff's complaint with prejudice. In the motion's supporting certification, defendant's counsel averred that more than sixty days had elapsed since the November 28, 2011 order of dismissal was signed, and plaintiff had still failed to either answer the interrogatories or respond to the notice to produce.
On March 2, 2012, the motion judge considered the motion. Plaintiff was physically present in the courtroom, while defendant's counsel participated remotely and was heard by means of a speakerphone. The judge asked plaintiff what he did when he received a copy of the November 28, 2011 order. Plaintiff explained that he had been in a disabling accident before that, and "it's been difficult for [him] to deal with these issues." He told the judge that he came to court "to present the evidence from [his] doctor, [his] disability, and also to request an extension." Although such evidence was not previously submitted to either the judge or defendant's counsel, plaintiff was permitted to present a written letter from a physician (an internist/gastroenterologist), which indicated that plaintiff had been involved in an automobile accident on August 17, 2011, just three weeks after being first served with the notice to produce and interrogatories. The letter continued, "[plaintiff's] ability to work has been affected. Likewise, [plaintiff's] ability to represent himself to the court was affected." The letter invited the judge to speak with plaintiff's "orthopedic, neurologic, and psychiatry [sic] specialists who will confirm the above." Plaintiff stated that he suffered a dislocated shoulder, which caused "great difficulty in writing and typing, and also a lot of pain. I've had like a big loss of — sleep deprivation, and . . . I probably have to have an operation."
The motion judge directly spoke to plaintiff about the nature of plaintiff's present health and also listened as defendant's attorney argued the merits of the motion to dismiss the complaint with prejudice. At the conclusion of these exchanges, the motion judge exercised his discretion and sua sponte elected to adjourn the motion for two weeks. He told plaintiff the following:
Within that two-week period, Mr. Girard, you have to do two things if you want your case to survive. You have to file a motion before this Court to vacate the [prior order of dismissal] . . . because the Court's not going to be lenient in two weeks. If you . . . come back and say, 'Jeez, Judge, I didn't understand you two weeks ago,' that's not going to be a reason . . . . Okay. So you need to file a motion before the Court. That motion needs to be filed within one week from today. It's a motion to vacate the [prior order of dismissal].
. . . .
And, of course, when you make that motion you must have provided to the other side fully responsive answers to interrogatories and fully responsive production of documents. That's what's required by the rule.
The motion judge further explained additional requirements, including plaintiff's obligations to pay a restoration fee and serve copies of all papers upon defendant's counsel. The judge also granted defendant's counsel an opportunity to respond to plaintiff's anticipated motion and discovery responses. The judge firmly stated that he would decide the matter on March 16, 2012, telling plaintiff, "[s]o you've . . . avoided the hangman today Mr. Girard, but it's only a stay of execution assuming that you follow those Rules of Court which you're aware of because you have those Rules of Court."
On March 16, 2012, plaintiff returned to the motion judge's courtroom, while defendant's attorney again was heard through a speakerphone. Defendant's attorney claimed that plaintiff had failed to follow the judge's instructions in several ways. First, plaintiff did not serve a copy of a motion to vacate the prior order of dismissal on defendant's counsel. Second, defendant's counsel claimed plaintiff's interrogatory answers were "non-responsive." Third, defendant's attorney mentioned that there were at least twelve missing material responses to the notice to produce. Finally, defendant's attorney asserted that plaintiff had failed to provide the names and reports of plaintiff's proposed expert witnesses.
It is accurate that plaintiff never filed a formal motion pursuant to Rule 1:6-2. Instead, he wrote a two-paragraph letter asking the motion judge to "consider this to be a motion to[] request that the court make an order restoring my case to the calendar upon the payment of 100usd [sic]."
The motion judge stated that he had reviewed plaintiff's discovery responses, and "frankly [did not] see that information that [plaintiff] provided as a good-faith effort or a good-faith response to that which is required under the Rules of Court." Although aware that plaintiff claimed his injury limited him to "writing and typing [twenty] hours per week," the judge was skeptical of plaintiff's assertion of spending forty hours on the discovery responses because plaintiff had "answered information by just saying see some other file." The judge also "[did not] accept [the] disability." He noted that plaintiff's sling would not prevent plaintiff from engaging "all sorts of services out there to be able to provide assistance if [plaintiff] needed it."
Nevertheless, the judge decided "to give [plaintiff] one more opportunity." Instead of resolving the motion as previously promised, the judge decided he would resolve the matter "next Friday." The judge told plaintiff that he needed to correct his responses in that time period by making his answers "fully responsive, and you can't include incorporation by reference." The judge cautioned plaintiff not to "direct people to . . . a document dump." He explicitly stated, "If you say that you've got a file that contains information, you need to be able to be precise as to what it is in that file that you're relying upon here with respect to it."
On the succeeding Friday, March 23, 2012, the motion judge returned to the unfinished dispute. Earlier in the week, plaintiff delivered additional discovery materials to defendant's attorney, which were again described as non-responsive because "there was still no answer whatsoever given to numbers [two] through [thirteen] on the notice to produce." Also, plaintiff identified — for the first time — his involvement in a case entitled, "State of New Jersey v. Girard," but gave no other information about the matter. Plaintiff further failed to provide information concerning a civil appeal that was related to the underlying malpractice claim other than responding "that those documents were at the office of Mark Heinze in Hackensack." Lastly, defendant's attorney noted that plaintiff still neglected to provide the name or report of any expert witness.
Mark Heinze was the author of plaintiff's affidavit of merit.
The motion judge reviewed plaintiff's submissions and rendered an oral decision from the bench. He found the following:
Here there is [] [a] detailed history with respect to this matter and the representation going over such a long period of time that there needs to be a preciseness for the defendant to know what it is the defendant needs to defend against, and the Court is concerned that the defendant is essentially denied the right to appropriately defend himself if a plaintiff abuses the discovery process. There has been such an abuse of the discovery process here by Mr. Girard. He may not have intended it. He may be in over his head in a case such as this. He does not have counsel, and the Court has been aware of that and attempted to work with Mr. Girard, but ultimately when the Court applies the [Rules] the Court is not going to have a set of rules that it applies for those who are not represented by counsel as opposed to those who are represented by counsel.A separate written "Memorandum of Decision on Motion" was issued by the motion judge on March 23, 2012, and a memorializing order was entered on the same day. This appeal followed.
. . . .
The Court has reviewed the submissions of Mr. Girard that he has supplied in this case, and the Court reluctantly concludes that Mr. Girard is not taking and has not taken this matter seriously; and it's unfortunate . . . that a case like this drags on for both sides when, when we know
that when a complaint is filed that people have to begin to take it seriously. The Court is especially aware that with respect to professional negligence cases that it is, that they are difficult cases, and that does not change the Rules of Court, however.
The Court does not reinstate the plaintiff's case, denies that motion, because there has not been fully responsive discovery provided; and the Court grants the motion to dismiss with prejudice.
The seven-page opinion outlined the procedural history of the case, summarized the contentions of the parties, and briefly explained the background of the malpractice claim. In concluding that plaintiff's case should be dismissed with prejudice, the motion judge stated the following:
The Court believes the Defendant is essentially being denied his right to appropriately defend himself. Plaintiff has abused the system.
The Court has reviewed the interrogatory answers and the response to the Notice to Produce. They are not a good faith effort to comply with the requirements that must be met to allow for reinstatement. They are not a good faith response to the directions by the Court on March 2 and March 16, 2012.
II.
On appeal, plaintiff contends that the Law Division erred insofar as plaintiff had properly complied with his discovery obligations. Plaintiff's chief argument is that "the claimed problem in [his] discovery responses is not that there were no documents provided, but the manner in which they were provided to the Defendant."
Our review of plaintiff's discovery responses reveals that although his discovery responses were not perfect, he nevertheless provided a wealth of material that may, at its core, satisfy defendant's discovery demands. Notwithstanding the appropriately tolerant approach of the Law Division, it nonetheless failed to fully engage itself in the machinery of our carefully calibrated discovery apparatus to precisely identify the delinquencies and to then discern whether plaintiff's inelegant discovery production could be salvaged.
The motion court's oral and written decisions clearly express its conclusions about plaintiff's failed efforts. We cannot, however, readily detect the reasons why, for example, the court thought plaintiff (1) did "not [make] a good faith effort," (2) "abused the system," or (3) did "not tak[e] . . . this matter seriously." The motion judge gave no examples to shed light on those determinations. We are left to speculate as to the whys and wherefores regarding specific delinquencies. Where the viability of plaintiff's case was in such jeopardy, albeit the result of plaintiff's self-created confusion, it was insufficient for the motion judge to just state his conclusions. Accordingly, it was improvident to dismiss the complaint with prejudice under Rule 4:23-5(a)(2).
"It is well-established that the main objective of the two-tier sanction process in Rule 4:23-5 is to compel discovery responses rather than to dismiss the case." A&M Farm & Garden Ctr. v. Am. Sprinkler Mech. L.L.C., 423 N.J. Super. 528, 534 (App. Div. 2012). However, "[a]t the same time, the rule affords a party aggrieved by dilatory discovery tactics a remedy to compel production of the outstanding discovery and the right to seek final resolution through the two-step dismissal process." Sullivan v . Coverings & Installation , Inc ., 403 N . J . Super . 86, 96 (App. Div. 2008).
"Whether to grant or deny a motion to reinstate a complaint lies within the sound discretion of the trial court." St . James AME Dev . Corp . v . City of Jersey City, 403 N . J . Super . 480, 484 (App. Div. 2008). Where a plaintiff does not provide the requested discovery between the order of dismissal without prejudice and the time of hearing the motion to dismiss with prejudice, and where there are no exceptional circumstances, the termination of litigation is appropriate. See Cooper v . Consol . Rail Corp ., 391 N . J . Super . 17, 22-23 (App. Div. 2007).
On the other hand, in furtherance of the judiciary's preference to resolve disputes on their merits, where there is a dispute about whether the offending party has met all discovery obligations, the court must resolve that dispute before dismissing the case with prejudice. See Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 376 (App. Div. 1992). Trial judges must cautiously stop, look, and listen when confronted by a situation where the ultimate litigation sanction of termination of a cause of action might occur where some discovery materials have been provided. We have held that the furnishing of incomplete discovery responses can "not be automatically considered as a failure to answer under R[ule] 4:23-5." Adedoyin v. ARC of Morris Cnty. Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999). To justify entry of an order putting a final end to plaintiff's malpractice action pursuant to Rule 4:23-5(a)(2), defendant arguably must show that plaintiff's responses were "patently inadequate[.]" Zimmerman, supra, 260 N.J. Super. at 377.
Here, although the motion judge's oral and written rulings declared that plaintiff had remained noncompliant with the judge's earlier advice, those rulings did not identify any specific discovery delinquencies that remained inadequately addressed by plaintiff's last-ditch efforts. Before imposing the ultimate sanction of dismissal, a trial court is required to fully involve itself under Zimmerman and St. James to impeccably detail a party's continuing failure to provide appropriate discovery. The failure to so engage constitutes a flawed exercise of discretion.
Involuntary termination of a civil action due to discovery delinquencies is not just a last resort, it must be preceded by a scrupulously indulgent effort to evaluate even a recalcitrant or oblivious litigant's discovery efforts, as long as that can be accomplished fairly to both sides. We understand that this imposes a significant burden on trial judges, as well as upon plaintiff's adversary. Nevertheless, it is a price we are willing to pay to foster the fair administration of justice. "Until courts have exhausted means of performing their shepherding function which do not terminate or deeply affect the outcome of a case, they ought not to bar a litigant's way to the courtroom." Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 407 (App. Div. 1986).
Defendant points out the following deficiencies that remain in plaintiff's discovery responses: (1) failure to provide any expert names or reports and (2) failure to provide responses to the notice to produce's requests two through thirteen. We conclude that plaintiff's response — "none" — to the interrogatory requesting the name and report of plaintiff's expert is both responsive and adequate. Whether plaintiff would come to regret that answer once defendant filed the inevitable motion for summary judgment under Buchanan v. Leonard, 42 8 N.J. Super. 277, 288 (App. Div. 2012), is a different issue. Also, because the 450-day discovery period, see Rule 4:24-1(a), had not expired, plaintiff was free (assuming his complaint was restored) to amend his answers to interrogatories to name an expert and supply an expert report. See R. 4:17-7.
Defendant identifies a handful of other supposed delinquencies, including plaintiff's failure to expound upon a newly-revealed criminal matter, but we elect to focus on defendant's two most significant claims. On remand, defendant may bring all alleged discovery delinquencies to the attention of the Law Division for adjudication.
We take a different view with regard to plaintiff's phantom responses to items two through thirteen of the notice to produce and his unruly responses to several other requests. Rule 4:18-1(b)(2) outlines the procedure for an appropriate response to a notice to produce documents. "[A] party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request[.]" R. 4:18-1(b)(2)(A). There is no evidence in this case that the documents provided by plaintiff to defendant's attorney were produced as they were kept in the usual course of business. Instead, plaintiff handed over to defendant's counsel a document storage box filled with unindexed documents and a table of contents for that container. The table of contents was a list of forty-eight numbered items, which failed to directly correspond with the categories in the notice to produce.
Based upon our review of what plaintiff provided to defendant's attorney, we share the motion judge's concern that plaintiff engaged in a document dump. By simply directing defendant's counsel to one or more of the files of documents without providing an intelligible means of relating the responses to the requests, plaintiff's responses were facially deficient. However, we lack full confidence that the contents of the document storage box, if reorganized and indexed, would inevitably fail to comply with our rules of discovery. Without an item-by-item review by the motion judge, and the lack of a meticulous exposition to guide our analysis, we believe that dismissal with prejudice went too far. This is not to say that plaintiff's complaint is safe. Rather, our remand with instructions will ensure fairness to defendant as well as to plaintiff.
In light of plaintiff's efforts to comply with the reasonable parameters of discovery, and the motion judge's imperfect explanation for jettisoning the complaint, we reverse and remand for further proceedings. The Law Division shall be required to make discrete findings as to whether the materials in the document storage box represent a full and complete response to defendant's discovery demands. The court may require plaintiff (or plaintiff's attorney if he is still retained) to physically mark each page in the document storage box with a unique identifier, index every document, and match the request to which each document applies. Plaintiff shall not be permitted to submit new documents to supplement the record. Having already been given at least three opportunities to satisfy his discovery responsibilities, plaintiff's compliance must be measured as of the last chance given by the Law Division in March 2012.
If the Law Division determines that the marked and indexed documents are "fully responsive" to the notice to produce, the court can order reinstatement of the complaint, require payment of the reinstatement fee, and impose "sanctions or attorneys fees and costs, or both" pursuant to Rule 4:23-5(a)(3) for the additional time and expense incurred by defendant in this motion practice. If the Law Division determines that the marked and indexed documents do not satisfy plaintiff's discovery obligation, and exceptional circumstances are not demonstrated, the court can enter a new order dismissing the complaint with prejudice. See R. 4:23-5(a)(2). In either event, the court shall thoroughly explain its rationale.
We do not intimate a particular conclusion in this regard, but note that the motion judge never explained exactly why he found plaintiff's alleged accident in August 2011, to not qualify as exceptional circumstances.
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Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION