Opinion
DOCKET NO. A-1474-14T3
02-23-2016
SAMUEL LUGO, Plaintiff-Appellant, v. CITY OF ATLANTIC CITY, OFFICER FRANK TIMEK, OFFICER PHILLIP DAVIDSON, and OFFICER MICHAEL OLDROYD, Defendants-Respondents.
Christopher Gillin-Schwartz argued the cause for appellant (Barry, Corrado & Grassi, P.C., attorneys; Mr. Gillin-Schwartz, on the brief). Rachel M. Conte argued the cause for respondents (Riley & Riley, attorneys; Tracy L. Riley, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7303-12. Christopher Gillin-Schwartz argued the cause for appellant (Barry, Corrado & Grassi, P.C., attorneys; Mr. Gillin-Schwartz, on the brief). Rachel M. Conte argued the cause for respondents (Riley & Riley, attorneys; Tracy L. Riley, on the brief). PER CURIAM
Plaintiff appeals from a September 12, 2014 order that denied his motion to extend discovery and an October 10, 2014 order that granted summary judgment to defendants. We reverse and remand.
I.
This case arises from a fight in the early morning hours of New Year's Day 2012 at the Los Compadres Bar in Atlantic City that spilled out into the street where plaintiff, Samuel Lugo, was smoking a cigarette with a friend. Lugo is hearing impaired. According to his complaint, as he began to walk away, Lugo saw an Atlantic City police officer "shouting orders at him." Lugo alleges an officer pushed him to the ground, seriously injuring him.
Lugo filed an internal affairs complaint with the Atlantic City Police Department and, although he identified three officers from photographs, the investigation concluded that none of the officers were on duty that night. The internal affairs investigation was closed with a finding that exonerated "unknown officers" from the excessive force allegations.
Defendant Officer Frank Timek was identified by one of Lugo's witnesses as the officer who might have assaulted Lugo and likewise identified two other officers who allegedly were present during the assault. Lugo filed a nine-count civil rights complaint in October 2012, alleging the use of excessive force and naming these officers and the Atlantic City Police Department as defendants.
As a Track III case, discovery was extended 450 days, ending on January 4, 2014. R. 4:24-1(a). Although little discovery was conducted initially, defendants identified the names of seven officers potentially involved in responding to the bar fight. The parties agreed to extend discovery to March 4, 2014 under Rule 4:24-1(c). Plaintiff requested to depose a number of individuals and provided answers to interrogatories in response to defendant's motion to dismiss. Because discovery was not completed, plaintiff filed a motion to extend discovery, which was granted. In extending discovery to June 5, 2014, the court ordered deadlines to complete depositions and to serve experts' reports.
The parties continued discovery. One of the fact witnesses who was deposed testified that an Atlantic City officer had pushed Lugo "to the floor." Also, the deposition of Officer Timek revealed for the first time that additional police officers were involved in responding to the bar fight. The names of those officers were provided to plaintiff's counsel on April 21, 2014 when defendants amended their discovery responses.
On May 6, 2014, plaintiff filed a motion to extend discovery to September 3, 2014. In granting the motion, the trial court ordered all parties to be deposed by July 1, 2014 and set deadlines for the service of experts' reports. In the court's supporting written memorandum of decision, the judge warned the parties they needed to complete discovery, saying "a very detailed description of the attempts by the parties to complete the discovery within the time parameters" would be required for any additional extension.
By letter dated August 4, 2014, plaintiff's counsel requested defense counsel to produce thirteen more officers for deposition, some of whom were identified in the April 21, 2014 letter, although others had been identified much earlier. Before the close of discovery, plaintiff filed yet another motion to extend discovery, which was returnable two days beyond the discovery end date of September 3, 2014. A ninety-day extension was sought to complete discovery, including the depositions of the officers identified in the April letter. The case did not have a trial or arbitration date.
The trial court denied the motion, concluding in his written decision of September 12, 2014 that "exceptional circumstances" were not shown. R. 4:24-1(c). The court observed that plaintiff was not diligent in pursuing discovery with a "sense of urgency," and commented that inattention to discovery did not constitute prejudice. He noted plaintiff had not requested to depose the additional officers until August 4, 2014, which was after the court-ordered deadline for conducting depositions, even though plaintiff had been aware of some of the officers' names for over a year. Also, there had been no attempt to serve experts' reports within the allotted timeframe, and counsel failed to advise why he could not complete the depositions or identify what circumstances had been beyond his control. The judge added that the application also did not satisfy the "good cause" standard, presumably for many of the same reasons.
On September 3, 2014, the date scheduled for the close of discovery, defendants filed a motion for summary judgment which was granted on the ground Lugo was unable to identify the officers who allegedly had assaulted him.
Lugo appeals, alleging there was good cause to extend discovery to depose the officers, and that it was error for the trial court to have applied the exceptional circumstances standard. He contends summary judgment was premature because discovery was not complete.
II.
Our review of discovery orders is generally made under the abuse of discretion standard, meaning "whether the trial court mistakenly exercised its discretion in denying plaintiff's motion for an extension of the discovery period under R. 4:24-1(c)." Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-2 (App. Div.), rev'd on other grounds, 185 N.J. 290 (2005). Normally, we "defer to the trial court's disposition of discovery matters . . . unless the court has abused its discretion. When the trial court's order is based on a mistaken understanding of the applicable law, however, such deference is inappropriate." Spinks v. Twp. of Clinton, 402 N.J. Super. 454, 459 (App. Div. 2008) (quotations and citations omitted).
Discovery extensions are "governed by Rule 4:24-1." Tynes v. St. Peter's Univ. Med. Ctr., 4 08 N.J. Super. 159, 168 (App. Div.), certif. denied, 200 N.J. 502 (2009). Initially, parties can consent to extend discovery for sixty days by filing a stipulation "prior to the expiration of the discovery period." R. 4:24-1(c). Thereafter, a party may request an extension of discovery by motion "made returnable prior to the conclusion of the applicable discovery period." Ibid. Where an extension is requested, the proposed form of order "shall describe the discovery to be completed, set forth proposed dates for completion, and state whether the adverse parties consent." Ibid.
Generally on "good cause . . . shown," ibid., discovery extensions are granted where there is no scheduled trial or arbitration date and no showing of prejudice to the other party. Leitner v. Toms River Reg'l Schools, 392 N.J. Super. 80, 93 (App. Div. 2007); Ponden v. Ponden, 374 N.J. Super. 1, 9-11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). Once a trial or arbitration date has been set, an extension is reviewed and granted only on a showing of exceptional circumstances. R. 4:24-1(c); Garden Howe Urban Renewal Assoc., LLC v. HACBM Architects Eng'rs Planners, LLC, 439 N.J. Super. 446, 460 (App. Div. 2015). The exceptional circumstances standard does not apply merely because "the trial court has entered an order extending the time for discovery pursuant to Rule 4:24-1(c)[.]" Tynes, supra, 408 N.J. Super. at 169.
"Under Leitner, we must first consider the reasons that plaintiffs offered for the requested discovery extension and whether plaintiffs were diligent in pursuing discovery earlier in the case." Id. at 170 (citing Leitner, supra, 392 N.J. Super. at 87). The standard of good cause is flexible; typically courts consider a number of factors in this evaluation. Leitner, supra, 392 N.J. Super. at 87-88. These include:
(1) the movant's reasons for the requested extension of discovery;
(2) the movant's diligence in earlier pursuing discovery;
(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;
(4) any prejudice which would inure to the individual movant if an extension is denied;
(5) whether granting the application would be consistent with the goals and aims of "Best Practices";
(6) the age of the case and whether an arbitration date or trial date has been established;
(7) the type and extent of discovery that remains to be completed;
(8) any prejudice which may inure to the non-moving party if an extension is granted; and
(9) what motions have been heard and decided by the court to date.
[Ibid.]
We are constrained to reverse and remand. The request to extend discovery should have been evaluated under the "good cause," and not "exceptional circumstances" standard, because there was no trial or arbitration date. Tynes, supra, 408 N.J. Super. at 169. The warning to the parties that they needed to abide the deadlines that were set did not alter the legal standard under the Rules. Tynes, supra, 408 N.J. Super. at 168-69.
Application of the Leitner factors showed good cause for an extension. The underlying matter is a civil rights complaint where the plaintiff, a hearing-impaired individual, claims he was injured by an Atlantic City police officer who he cannot yet identify. The identity of who was involved in the incident is central to plaintiff's case. His allegation he was assaulted by the police allegedly finds some support in the deposition testimony of one of the witnesses. The internal affairs report listed a number of police officers who responded to the scene, but did not identify the other officers who were later identified by the defendants in their April 2014 letter. Plaintiff sought to depose those officers, but the remaining period for discovery posed a challenge for their completion.
Plaintiff and defendants should have pursued discovery more vigorously rather than cancelling depositions and rescheduling them weeks later. Nevertheless, because of the late identification by defendants of a number of other officers, plaintiff also should have had the ability to finish those depositions. The extension requested was short and there was no trial or arbitration date. Plaintiff was prejudiced by not being able to complete the depositions because defendants filed and were granted summary judgment that dismissed plaintiff's case. That decision hinged on plaintiff's failure to identify who had assaulted him. There was no substantial prejudice to the defendants in giving the extension.
In light of our holding that there was good cause for the extension, the order granting summary judgment was premature. Summary judgment should not be granted where discovery is not complete. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988); Driscoll Constr. Co. v. State, 371 N.J. Super. 304, 318 (App. Div. 2004). Plaintiff should have had the opportunity to undertake further discovery that may have raised a "genuine issue [of] material fact[.]" R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
In finding good cause for the extension and that summary judgment was premature, we make no comment on the merits. Defendants are not prevented from again moving for summary judgment upon the close of discovery.
We reverse and remand. The trial court should conduct a case management conference in twenty (20) days at which time the parties shall be prepared to conduct discovery on an accelerated basis given the age of the case. 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