Opinion
DOCKET NO. A-2037-13T4
12-02-2015
VERONICA WHITE, Plaintiff-Appellant, v. CABLEVISION SYSTEMS CORP., Defendant-Respondent, and GEORGE SANDSTROM and JASON MALYUK, Defendants.
Veronica White, appellant pro se. Morgan, Lewis & Bockius, LLP, attorneys for respondent (Michelle S. Silverman and Joseph A. Nuccio, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6756-09. Veronica White, appellant pro se. Morgan, Lewis & Bockius, LLP, attorneys for respondent (Michelle S. Silverman and Joseph A. Nuccio, of counsel and on the brief). PER CURIAM
Plaintiff Veronica White appeals from the trial court's November 22, 2013 order dismissing with prejudice her complaint alleging a violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD) and a breach of the implied covenant of good faith and fair dealing. The trial court issued the dismissal after prolonged pre-trial litigation during which plaintiff was repetitively uncooperative and duplicitous in her discovery responses. We affirm.
I
In 1994, defendant, Cablevision MFR, Inc. employed plaintiff, an African-American woman. Although plaintiff expressed an interest in a promotion in 2008, a male employee received the job. Plaintiff then filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that Cablevision discriminated against plaintiff on the basis of sex. Later in 2008, plaintiff took a leave of absence for a few months pursuant to the Family and Medical Leave Act (FMLA) due to chronic back and knee problems.
On April 21, 2009, the EEOC dismissed plaintiff's charge, stating that the agency was "unable to conclude that the information obtained" established that Cablevision discriminated against her. Approximately four months later, plaintiff was suspended and then terminated after a determination that "she had falsified a time matrix sheet." At the time of her dismissal, plaintiff was earning approximately $45,000 a year.
In September 2010, plaintiff applied to Monumental Life Insurance Co. (Monumental) for a licensed sales agent position. Plaintiff failed the licensing exam five times. She eventually obtained the license in April 2011 and reapplied for the sales job a year after obtaining her license. On May 1, 2012, plaintiff was employed by Monumental as a licensed sales agent, earning $20,000 to $30,000 based on commissions, services, and bonuses.
II
Plaintiff filed the complaint in August 2009, alleging that she was terminated in retaliation "for her complaints and her filing for disability." Plaintiff alleged damages in excess of $600,000, although she failed to provide evidence of her attempts to mitigate damages. Discovery began in October 2009. Her responses to Cablevision's discovery request: 1) failed to include her sources of income; 2) stated that she did not recall any lawsuits pending; and 3) contained no documents related to her prior bankruptcy proceedings. Since 1992, plaintiff had filed seven personal bankruptcies, and two bankruptcies for her business.
In May 2010 plaintiff filed a Chapter 7 bankruptcy petition without mentioning the pending litigation against Cablevision. More than $381,723 was discharged in the Chapter 7 proceeding. At her deposition in November 2010 Cablevision discovered that plaintiff had failed to disclose her income from a restaurant, Filet Café. Additionally, Cablevision discovered that plaintiff was listed as the principal for Filet Café and was the signatory of the business's lease, although plaintiff claimed another individual was the true owner.
Cablevision moved to dismiss on the basis of judicial estoppel, whereupon plaintiff moved to reopen the bankruptcy litigation, claiming that her failure to disclose the Cablevision litigation in the bankruptcy proceeding was inadvertent. Cablevision's motion was denied.
Plaintiff was deposed again in May 2011 when she admitted that she was the sole proprietor of Filet Café. Plaintiff also admitted that she had applied to only one employer, Monumental, after her termination from Cablevision.
Further, after the close of discovery, in July 2012, Cablevision found out that plaintiff prepared bankruptcy petitions for at least nine individuals in that year alone. Cablevision also later discovered that plaintiff was a landlord. In April 2013 the court reopened discovery to allow Cablevision to obtain further information. The motion court found that: 1) Cablevision recently discovered new evidence regarding plaintiff's bankruptcy history; 2) plaintiff failed to respond truthfully to Cablevision's discovery requests; and 3) plaintiff possessed documents that were relevant to the case and could result in "surprises at trial."
Plaintiff was not responsive to Cablevision's further discovery requests. When deposed in May 2013 plaintiff testified that she had documents, but did not produce them. That same month the court granted Cablevision's motion to dismiss without prejudice, stating that if plaintiff did not provide the materials within sixty days, Cablevision could file a motion to dismiss with prejudice. During the sixty-day interim, plaintiff responded in part, producing only what she thought was "helpful," and her September 2013 deposition revealed other sources of undisclosed income and other documents she had not provided. Although plaintiff was not responsive, in October 2013 the trial court denied Cablevision's subsequent motion to dismiss with prejudice and provided plaintiff another opportunity "to produce fully responsive answers" within fourteen days. Despite this additional grace period, the court found that plaintiff "provided only minimal additional document production" and dismissed plaintiff's complaint with prejudice in November 2013. The court stated that plaintiff "had never bothered to search for documents stored in file cabinets and boxes in her own house, basement, and garage." The court also stated that, "plaintiff testified as [to] having at least two sources of income she's never disclosed to defendant and about which no documents have been produced . . . all this despite having now signed two certifications swearing that her production is complete and accurate."
Plaintiff failed to produce documents including: 1) pay statements and other employment documents from Monumental; 2) wage payments to employees of plaintiff's company, New Millennium Suites; 3) insurance policies Plaintiff claims to have sold to friends and family during her employment with New York Life; 4) documents she received from Primerica, an insurance company where plaintiff allegedly attended training for her insurance license; 5) documents relating to plaintiff's attempts to take the state life insurance licensing test; 6) additional documents relating to her bankruptcy preparations; 7) documents or information relating to a company, Brickline Investment Inc. that plaintiff was apparently associated with; and 8) documents relating to her post-employment income, including FEMA benefits and unemployment benefits. --------
III
We "generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)). Similarly, "the standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion." Abtrax Pharm. v. Elkins-Sinn, 139 N.J. 499, 517 (1995).
Under an abuse of discretion standard, we must find that the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). This standard is only satisfied upon a "demonstration of 'manifest error or injustice.'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2002)). Plaintiff argues that the motion court abused its discretion in reopening discovery.
Effective September 2000, the New Jersey Court Rules were modified to implement the "best practices" for the purpose of improving "the efficiency and expedition of the civil litigation process." Vargas v. Camilo, 354 N.J. Super. 422, 425 n.1 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003). "[A] major concern of the Best Practices rules was the establishment of credible trial dates by the avoidance of last-minute or 'eve of trial' adjournments by reason of incomplete discovery." Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003) (citing R. 4:36-3). However, the rules "were not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to 'secure a just determination.'" Ibid. (quoting R. 1:1-2).
Pursuant to the New Jersey Court Rules, if no arbitration or trial date is set, the court "shall enter an order extending discovery" upon a showing of good cause. R. 4:24-1(c). However, "[n]o extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." Ibid. "Although the rule does not provide a specific definition of 'exceptional circumstances,'" this Court equates the term to "extraordinary circumstances." Rivers, supra, 378 N.J. Super. at 78; see also Flagg v. Twp. of Hazlet, 321 N.J. Super. 256, 260 (App. Div. 1999) (stating that the word extraordinary "denotes something unusual or remarkable").
"The exceptional circumstances standard of Rule 4:24-1 is designed to deal with the problems created when requests for discovery are presented out of time, creating the possibility of delay." Rivers, supra, 378 N.J. Super. at 80 (citing Montiel v. Ingersoll, 347 N.J. Super. 246, 249 (Law Div. 2001)). Under the exceptional circumstances standard, the movant has the burden of satisfying four inquiries:
(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.
[Garden Howe Urban Renewal Assocs., LLC v. HACBM Architects Eng'rs Planners, LLC, 439 N.J. Super. 446, 460 (App. Div. 2015) (added spacing) (quoting Rivers, supra, 378 N.J. Super. at 79).]
Additionally, the "attorney requesting additional time for discovery should establish that he or she did make effective use of the time permitted." Rivers, supra, 378 N.J. Super. at 79 (quoting Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)). If an attorney fails "to pursue discovery promptly, within the time permitted," the court should normally deny the request. Ibid. (quoting Vitti, supra, 359 N.J. Super. at 51).
The motion court properly found that Cablevision had legitimate reasons for its requested extension of discovery and was diligent in pursuing discovery. Cablevision initiated discovery on October 2009, only two months after the filing of plaintiff's complaint. Also, despite plaintiff's failure to comply with Cablevision's discovery requests, Cablevision engaged in independent research to further pursue unknown information.
The motion court properly found that additional discovery was essential because the undisclosed discovery were relevant to the issues in the Cablevision matter. The record shows that: 1) discovery of plaintiff's additional income supports Cablevision's position concerning front pay and back pay; 2) plaintiff's non-disclosures were essential to Cablevision's arguments regarding impeachment and judicial estoppel; and 3) plaintiff's decision to operate Filet Café, an unsuccessful restaurant, supports Cablevision's position regarding mitigation.
Regarding the third factor, the motion court properly found that Cablevision had a legitimate explanation of why an extension was not sought during the original discovery period. Cablevision did not seek an extension because it was expecting discovery responses from plaintiff. Although plaintiff's attorney promised that plaintiff would produce additional documents, she continually failed to do so. Cablevision attempted to serve subpoena duces teca, but plaintiff avoided service each time. Further, Cablevision discovered new evidence of plaintiff's discovery misconduct in January 2013, after the end of the original discovery period.
Lastly, the motion court found that the circumstances were beyond Cablevision's control. Thus the motion court did not abuse its discretion in reopening the discovery period.
Neither did the court abuse its discretion when it dismissed the complaint with prejudice. Pursuant to a two-step procedure, the New Jersey Court Rules authorize trial courts to dismiss a case with prejudice for a plaintiff's non-compliance with discovery obligations. R. 4:23-5(a). First, if a defendant's discovery request "is not complied with and no timely motion for an extension or a protective order has been made," the aggrieved defendant may move to dismiss the case without prejudice. R. 4:23-5(a)(1). Upon defendant's motion, the trial court shall dismiss the case without prejudice "[u]nless good cause for other relief is shown." Ibid. Second, if the dismissal without prejudice is "not thereafter vacated," the defendant may move for a dismissal with prejudice after sixty days from the original order. R. 4:23-5(a)(2). The trial court shall grant the motion to dismiss with prejudice unless "the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated." Ibid. Plaintiff did not fully respond to discovery, nor did she demonstrate exceptional circumstances, thus dismissal with prejudice was appropriate.
Plaintiff also argues that the motion court was biased against her and ruled against her due to tension between the court and her counsel. Nothing in the record supports these allegations, and the arguments are without sufficient merit to require discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION