NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0034-16T1
AZIZ M. THABO, APPROVED FOR PUBLICATION Plaintiff-Appellant, November 17, 2017 v. APPELLATE DIVISION
Z TRANSPORTATION,
Defendant-Respondent. ___________________________________
Submitted September 27, 2017 - Decided November 17, 2017
Before Judges Fuentes, Manahan and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3296-15.
Anthony J. Van Zwaren, attorney for appellant.
Sammarro & Zalarick, PA, attorneys for respondent (Stephen M. Sammarro, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
In this breach of contract case, the Law Division judge
dismissed with prejudice plaintiff's complaint by imposing the
ultimate discovery sanction provided in Rule 4:23-5. We now
reverse and remand this matter for further proceedings because the party who filed this motion and the Law Division judge who
imposed this sanction failed to follow the procedural safeguards
codified in Rule 4:23-5.
The record shows defendant did not provide the motion judge
with competent evidence showing it complied with the strict
notice requirements of Rule 4:23-5. Even more egregious,
defendant received the outstanding discovery which formed the
basis of the sanction a month before the judge dismissed
plaintiff's complaint with prejudice. This wholesale disregard
for the due process protections embodied in Rule 4:23-5 can
occur only when the trial court fails to perform its basic
gatekeeping function.
We derive the following facts from the record developed by
the parties at this stage of the litigation. We emphasize,
however, that the veracity of the factual claims that form the
basis of this cause of action are not at issue here. We do not
express any opinion about the merits of this cause of action.
I
On July 10, 2015, plaintiff Aziz M. Thabo contacted Igor
Nikolovski, a representative of defendant Z Transportation, in
response to an advertisement defendant had placed in a
publication called "Truck Paper," offering for sale a 2006
Freightliner C1124ST – Century 112 truck for $19,600. According
2 A-0034-16T1 to plaintiff, he made clear to Nikolovski that he was only
looking to buy a Department of Transportation (DOT) compliant
truck. Defendant allegedly assured plaintiff that the 2006
Freightliner C1124ST – Century 112 truck met this requirement.
In fact, defendant described the truck in its advertisement as
being "DOT Ready," which plaintiff understood to mean the truck
would pass inspection and comply with the regulations of the
Department of Transportation and the Federal Motor Carrier
Safety Administration.1
Plaintiff claims that when he took the truck for a test
drive, he immediately noticed it was not DOT compliant.
Nikolovski acknowledged the deficiency and agreed to make the
truck DOT ready, provided that plaintiff would commit to
purchasing the truck. Plaintiff agreed and gave defendant a
$1000 deposit as an indication of his good faith commitment to
buy the truck. Defendant alleges it paid for the replacement
and repair of certain parts to ensure the truck was DOT
compliant. Defendant further alleges it told plaintiff that the
necessary repairs had been done and the truck was ready for pick
up on August 15, 2015. Plaintiff sent defendant a check in the
1 See 49 C.F.R. 396.1 to -396.25.
3 A-0034-16T1 amount of $18,600, representing the balance of the purchase
price.
Before plaintiff took possession of the truck, defendant
informed him that the truck displayed an error code message on
the dashboard related to the air conditioning. Defendant
nevertheless assured plaintiff that the truck was DOT certified
and provided plaintiff with a document denoted "Vehicle History
Record." The document contains a checklist of all the items
inspected and certified as "OK." There is a blank space on the
right corner of the document with the words "Inspector's Name
(Print or Type)," which was left blank. Immediately below this
blank box is another space that states: "This inspector meets
the Qualification Requirements in Section 396.19." A box with
the word "YES" was marked with an "X."
Based on the error code message in the truck's dashboard,
plaintiff refused to take possession of the vehicle and asked
defendant to refund him the $19,600. Plaintiff claims he
contacted defendant several times thereafter demanding the
refund of his money, to no avail. Defendant claims it contacted
plaintiff several times to determine when he planned to pick up
the truck, but did not get an answer. Defendant also claims it
has incurred storage charges due to plaintiff's failure to take
possession of the truck.
4 A-0034-16T1 II
On September 23, 2015, plaintiff filed a pro se complaint
against defendant in the Law Division. At this time, plaintiff
resided in the Township of Darby, Pennsylvania.2 On November 23,
2015, defendant filed its answer alleging several affirmative
defenses and a counterclaim to recover storage charges allegedly
incurred in safekeeping the truck after it was sold to
plaintiff. Defendant claims the truck was DOT compliant and
seeks to recover the storage charges it had incurred as a result
of plaintiff's alleged breach of the sales contract.
The initial discovery end date (DED) in this matter was
April 21, 2016. Plaintiff served defendant with a notice to
produce documents by certified mail on December 4, 2015, and
December 23, 2015. Defendant served plaintiff with
interrogatories and a notice to produce documents on January 4,
2016. Plaintiff filed a motion to compel defendant to respond
to the notice to produce on February 3, 2016. During this time,
plaintiff still resided in the Township of Darby, Pennsylvania.
On February 10, 2016, defendant's attorney filed a motion
to dismiss plaintiff's complaint for failure to provide answers
to the interrogatories and for failure to provide responses to
2 To protect his privacy, we have not described plaintiff’s specific address.
5 A-0034-16T1 the notice to produce. The motion documents did not specify
whether the dismissal defendant sought as a sanction against
plaintiff was with or without prejudice. In the certification
submitted in support of the motion, defendant's attorney also
failed to include a statement indicating that defendant, as the
moving party, was not in default of any discovery obligations
owed to plaintiff, as required by Rule 4:23-5(a)(1).
Although defendant's attorney included a statement that he
had "orally conferred, or has made a good faith effort to orally
confer with the opposing party to no avail," he did not
"specifically describe[]" the type of "good faith" efforts he
made, as required by Rule 1:6-2(c). Finally, defendant’s
counsel's certification of mailing did not include a statement
under oath that plaintiff was served with a copy of the motion.
The only reference to plaintiff being served with this motion is
found in defense counsel's transmittal letter addressed to the
vicinage's "Civil Division Motion's Clerk." In this letter,
counsel merely states: "By copy of this letter, I am forwarding
a copy of this Notice of Motion to my adversaries." We infer
from the incongruous reference to "adversaries" in the plural,
despite plaintiff being the only adversary in the case, that
this was a form letter.
6 A-0034-16T1 As this record makes clear, by the time defendant filed
this motion, the Law Division had two conflicting discovery
motions pending. On February 19, 2016, the Law Division judge
granted plaintiff's motion to compel defendant to respond to the
notice to produce documents. The judge found that "[d]espite
[p]laintiff’s good faith effort to resolve the outstanding
discovery, responses have not been received by [p]laintiff to
date." The judge ordered defendant to respond to the notice to
produce within fifteen days of the order. Pursuant to the
method of calculation codified in Rule 1:3-1,3 defendant's
documents were due on March 7, 2016. The order indicates that
plaintiff's motion was unopposed. At the time the judge entered
this order, there were seventy-one days left until the April 21,
2016 DED.
3 Under Rule 1:3-1:
In computing any period of time fixed by rule or court order, the day of the act or event from which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor legal holiday. In computing a period of time of less than 7 days, Saturday, Sunday and legal holidays shall be excluded.
7 A-0034-16T1 On March 18, 2016, the same judge granted defendant's
motion to dismiss plaintiff's complaint for failure to provide
answers to interrogatories. As was the case when plaintiff
moved for discovery relief, the court's order indicates that
defendant's motion was unopposed. In the brief filed in this
appeal, defendant's attorney asserts that he personally
telephoned plaintiff after the court dismissed the complaint
without prejudice in an effort to secure plaintiff's voluntary
compliance. However, factual assertions made by an appellate
counsel that are not supported by a specific citation to the
record developed before the trial court and supported by a
specific citation to the appendix violate the rules of appellate
practice and will not be considered.4
The record before us contains a "Substitution of Counsel"
signed by plaintiff and his attorney on March 9, 2016.
Inexplicably, this notice was not filed with the Law Division
until April 25, 2016, four days after the expiration of the
April 21, 2016 DED. On June 2, 2016, defendant moved to dismiss
4 See Rule 2:6-4(a) describing the contents of a respondent’s brief and its correlation to Rule 2:6-2(a)(5). See also Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009) (explaining that it is the responsibility of the parties to refer this court to specific parts of the record to support their argument.) "Lack of familiarity with appellate court procedures is no excuse." Miraph Enters., Inc. v. Bd. of Alco. Bev., Paterson, 150 N.J. Super. 504, 508 (App. Div. 1977).
8 A-0034-16T1 plaintiff's complaint with prejudice pursuant to Rule 4:23-
5(a)(2) for failure to provide discovery.
Presumably unaware of plaintiff's counsel's appearance in
the case, defendant’s counsel's certification of mailing
reflects that the notice of motion and supporting documentation
were sent directly to plaintiff at his address in Darby,
Pennsylvania. Defendant's attorney submitted a certification in
support of the motion that included the following factual
representations:
2. The time for the plaintiff to answer interrogatories and provide responses to the notice to produce propounded have expired and the plaintiff has not provided any of the information requested. . .
3. Accordingly, on February 10, 2016, the defendant filed a Motion to dismiss the complaint of the plaintiff, Aziz M. Thabo for failure to answer interrogatories and answer Notice to Produce returnable on March 18, 2016. Said motion was granted on March 18, 2016[.]
4. Pursuant to [Rule] 4:23-5(a)(2), the defendant now moves for dismissal of plaintiff, Aziz Thabo’s complaint with prejudice as the sixty (60) day grace period to provide the overdue discovery has passed and plaintiff has still failed to supply the overdue discovery.
In a letter dated June 6, 2016, plaintiff's attorney sent
defendant's attorney: (1) a copy of the substitution of counsel
filed with the court; (2) plaintiff's answers to defendant's
9 A-0034-16T1 interrogatories and notice to produce; and (3) plaintiff's
interrogatories and a new notice to produce. In an order
entered on July 8, 2016 marked "unopposed," the motion judge
dismissed plaintiff's complaint with prejudice ostensibly
pursuant to Rule 4:23-5(a)(2) "for failure to provide answers to
interrogatories and responses to a notice to produce[.]"
In a letter dated July 18, 2016, defendant's attorney sent
plaintiff's attorney a copy of the trial court's order.
Defendant's attorney stated in the transmittal letter that the
order was "self-explanatory" and advised plaintiff's counsel to
be "guided accordingly." In the brief submitted in this appeal,
defendant's counsel does not offer any explanation for not
withdrawing the motion after he received the outstanding
discovery from plaintiff's attorney more than a month earlier.
On July 18, 2016, the same day he received defendant's
counsel's letter transmitting the court's order, plaintiff's
counsel filed a motion to restore the case to the active trial
calendar and permit plaintiff to file an answer to defendant's
counterclaim and "to continue discovery."5 Plaintiff submitted a
certification in support of the motion in which he averred that
since he filed his complaint pro se, he had moved to Folcroft,
5 Because the DED was April 21, 2016, we presume plaintiff’s counsel was also seeking an extension of the initial discovery period.
10 A-0034-16T1 Pennsylvania. Consequently, he did not receive the notice of
defendant's February 10, 2016 motion to dismiss his complaint
without prejudice.
Plaintiff emphasized: "If I had known of the defendant's
motion to dismiss while he was in violation of the order of
February 19, 2016, I certainly would have appeared." Plaintiff
also noted that defendant's attorney's certification stating
that plaintiff "had failed to respond to outstanding discovery"
was false because his attorney "had sent out all responses" on
June 6, 2016. Plaintiff pointed out that the court had found
defendant delinquent in its discovery obligation to plaintiff,
before defendant moved to dismiss plaintiff's complaint.
Despite these procedural irregularities, a different judge
denied plaintiff's motion without affording his attorney an
opportunity to present oral argument. In an order dated August
8, 2016, the judge wrote: "The applicant[ion] is denied. [The
previous] Judge . . . dismissed this matter with prejudice by
order July 8, 2016."
III
"[T]he 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, Inc.,
139 N.J. 499, 517 (1995). The trial court is deemed to have
11 A-0034-16T1 abused its discretion when the "'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) (quoting Flagg v. Essex
County Prosecutor, 171 N.J. 561, 571 (2002)). A trial court's
exercise of discretion is "entitled to respectful review under
an abuse of discretion standard[.]" Serenity Contracting v.
Fort Lee, 306 N.J. Super. 151, 157 (App. Div. 1997).
Here, the flagrant disregard of the procedural requirements
of Rule 4:23-5 satisfies this standard of review. The decisions
made by the Law Division judges that resulted in the dismissal
of plaintiff's complaint with prejudice were made without a
rational explanation, inexplicably departed from the rule's
procedural requirements and constitute clear abuses of their
discretionary authority. Flagg, supra, 171 N.J. at 571. The
original motion judge who dismissed plaintiff's complaint
without prejudice abused her discretion because at the time she
entered this order, that same judge had previously found
defendant was delinquent in its discovery obligation to
plaintiff.
However, the motion judge is not exclusively responsible
for this oversight. Defendant's counsel violated the
requirements of Rule 4:23-5(a)(1) when he moved to dismiss
12 A-0034-16T1 plaintiff's complaint without disclosing to the court that his
client was in default of its discovery obligations. This
material omission by defendant's counsel indisputably
contributed to the judge's error and may have constituted a
violation of an attorney's "obligation of candor to each other
and to the judicial system, which includes a duty of disclosure
to the court and opposing counsel." McKenney v. Jersey City
Med. Ctr., 167 N.J. 359, 371 (2001). See also RPC 3.3(a)(5)
(prohibiting an attorney from knowingly failing "to disclose to
the tribunal a material fact knowing that the omission is
reasonably certain to mislead the tribunal[.]").6
Independent of defense counsel's conduct, the record shows
the motion judge failed to adhere to the procedural safeguards
codified in Rule 4:23-5. The rule imposes a duty on the motion
judge "to take action to obtain compliance with the requirements
of the rule." A & M Farm & Garden Ctr. v. Am. Sprinkler Mech.
6 However, it is beyond our role and authority as an intermediate appellate court to make any determination concerning whether defendant’s counsel committed an ethical violation. Our State Constitution expressly provides the Supreme Court with the “exclusive jurisdiction over the admission to the practice of law and the discipline of persons admitted." N.J. Const. art. VI, § 2, ¶ 3. Robertelli v. New Jersey Office of Atty. Ethics, 224 N.J. 470, 476 (2016). The Court "has both the authority and obligation to oversee the discipline of attorneys." R.M. v. Supreme Court of New Jersey, 185 N.J. 208, 213 (2005); see also State v. Rush, 46 N.J. 399, 411 (1966).
13 A-0034-16T1 L.L.C., 423 N.J. Super. 528, 532 (App. Div. 2012). Rule 4:23-5
codified a two-step procedural paradigm that must be strictly
adhered to before the sanction of dismissal of a complaint with
prejudice for failing to answer interrogatories or provide other
discovery can be imposed. St. James AME Dev. Corp. v. City of
Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008). These
procedural requirements must be scrupulously followed and
technically complied with. Sullivan v. Coverings &
Installation, Inc., 403 N.J. Super. 86, 95 (App. Div. 2008).
Step one requires the party aggrieved by the delinquent
party's failure to fulfill its discovery obligations to move to
dismiss the complaint without prejudice. R. 4:23-5(a)(1). To
ensure the delinquent party is aware of its derelictions and has
the opportunity to correct them, the rule further provides that:
Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore. If the delinquent party is appearing pro se, service of the order and notice hereby required shall be made by counsel for the moving party.
[R. 4:23-5(a)(1)(emphasis added).]
14 A-0034-16T1 Ordinarily, self-represented litigants are not entitled to
greater rights than litigants who are represented by counsel.
Ridge at Back Brook, L.L.C. v. Klenert, 437 N.J. Super. 90, 99
(App. Div. 2014). However, Rule 4:23-5 expressly requires the
party seeking relief from the court to ensure that pro se
litigants receive proper notice and be served with the order
imposing the sanction of dismissal or suppression without
prejudice available under step one. When a party is appearing
pro se, it is the responsibility of the attorney representing
the moving party to ensure that the pro se litigant has been
provided with service of the order and proper notice.
After complying with the procedures set out in step one of
the rule, a party may then move to dismiss the complaint with
prejudice. Rule 4:23-5(a)(2) provides that:
the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client's whereabouts have not been able to be
15 A-0034-16T1 determined and such service on the client was therefore not made. If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. The moving party need not appear but may be required to do so by the court. The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.
[R. 4:23-5(a)(2)(emphasis added).]
When the aggrieved party files a motion to dismiss with
prejudice, the delinquent party's attorney has two non-waivable
obligations: (1) file an affidavit with the motion judge
indicating that the client has been notified of the pending
motion's legal consequences in accordance with the form
prescribed; and (2) personally appear before the motion judge on
the return date of the motion. If the delinquent party is pro
se, the rule imposes an additional obligation on the attorney
representing the party seeking relief. The attorney for the
moving party is required to attach an affidavit of service to
the notice of motion and proposed order, or file an affidavit
explaining why service was not made.
16 A-0034-16T1 Finally, Rule 4:23-5(a)(3) provides that:
If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule.
[Emphasis added.]
These procedural safeguards are intended to "ensure that
the defaulting litigant is aware that the order of dismissal or
suppression without prejudice has been entered and of its
consequences." Pressler & Verniero, Current N.J. Court Rules,
comment 1.2 on R. 4:23-5 (2017). The best way to foster public
confidence in our civil courts is to decide cases on their
merits. Discovery rules are intended to create a level playing
field for all litigants and promote the resolution of civil
dispute on the merits. Judges are entrusted to ensure that these
rules are properly and fairly enforced.
Here, the system failed because both the motion judge and
the attorney representing the moving party failed to follow the
strict procedural requirements of Rule 4:23-5. The order of the
Law Division dated July 8, 2016 dismissing plaintiff's complaint
17 A-0034-16T1 with prejudice is vacated. Plaintiff's complaint is reinstated
and the case is remanded to the Law Division for the judge
assigned to this case to conduct a case management conference
with the attorneys to determine the status of discovery. The
judge shall thereafter enter a case management order setting a
new discovery end date, a schedule for filing dispositive
motions, and address such other matters as the judge deems
appropriate, including fixing a trial date.
Reversed and remanded. We do not retain jurisdiction.
18 A-0034-16T1