NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2906-15T4
JACQUELINE JALIL, LUISA ROJAS, and TANIA MENA,
Plaintiffs-Respondents,
v.
PILGRIM MEDICAL CENTER and DR. NICHOLAS CAMPANELLA,
Defendants-Appellants. _________________________________
Submitted May 2, 2017 – Decided May 9, 2017
Before Judges Fasciale and Sapp-Peterson.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7913- 13.
Crew Schielke, attorney for appellants.
Deutsch Atkins, P.C., attorneys for respondents (Adam J. Kleinfeldt and Kathryn K. McClure, of counsel and on the brief; Michael Malatino, on the brief).
PER CURIAM
Pilgrim Medical Center (PMC) and Nicholas V. Campanella, M.D.
(Dr. Campanella) (collectively defendants) appeal from a March 4, 2016 order denying defendant's cross-motion to vacate default
judgment, quash an information subpoena, reinstate an answer, and
extend discovery. Judge Dennis F. Carey, who was thoroughly
familiar with the case, entered the order and rendered an oral
opinion. We affirm.
In October 2013, Jacqueline Jalil, Luisa Rojas, and Tania
Mena (collectively plaintiffs), filed a complaint against
defendants alleging violations of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. In February 2014,
defendants filed an answer. Thereafter, the parties proceeded to
pre-trial discovery.
In April 2014, plaintiffs propounded interrogatories and a
notice to produce documents. Defendants failed to respond. In
September 2014, plaintiffs' counsel notified defendants' counsel
about the deficiency. Defendants ignored the notice. Plaintiffs
then filed a motion to suppress defendants' answer without
prejudice pursuant to Rule 4:23-5(a)(1) for failure to answer
interrogatories.
In November 2014, defendants served plaintiffs with
interrogatory answers and responses to plaintiffs' notice to
produce. Plaintiffs' counsel withdrew the motion, but wrote
defendants' counsel a letter identifying the deficiencies in
discovery.
2 A-2906-15T4 Defendants' counsel did not respond to the letter. In May
2015, plaintiffs' counsel sent a sixteen-page deficiency letter
itemizing the inadequate responses that went to the foundation of
the cause of action. The letter provided specifics as to the
discovery problems and stated that defendants responded
"ambiguously" to "nearly every [d]ocument [r]equest," and
explained that many requests went unanswered. Once again,
defendants' counsel did not respond.
In May 2015, plaintiffs filed a second motion to suppress
defendants' answer without prejudice pursuant to Rule 4:23-5(a)(1)
for failure to answer interrogatories. Plaintiffs also filed a
motion to compel production of the outstanding documents pursuant
to Rule 4:23-5(c). In June 2015, defendants' first counsel
withdrew and a new attorney filed a substitution of attorney. Both
lawyers received notice of the motions.
On June 26, 2015, the judge granted both motions, which were
unopposed. He suppressed defendants' answer without prejudice for
failure to answer interrogatories pursuant to Rule 4:23-5(a)(1)
and (2); and on the same date, he compelled defendants to provide
by July 12, 2015, more specific responses to plaintiffs' document
request pursuant to Rule 4:23-5(c). Plaintiffs' counsel properly
served the orders on the new attorney, which defendants duly
ignored.
3 A-2906-15T4 On July 21, 2015, plaintiffs moved to suppress defendants'
answer pursuant to Rule 4:23-2(b), not Rule 4:23-5(a)(2), arguing
that defendants failed to comply with the June 2015 order
compelling production of documents by a date certain. Defendants
did not oppose the motion. On August 7, 2015, the court suppressed
defendants' answer with prejudice. The record reflects
plaintiffs' counsel properly served that order on defendants' new
attorney.
In September 2015, and on notice to counsel, the court
scheduled a proof hearing for October 15, 2015. At the proof
hearing, which defendants and their counsel failed to appear,
plaintiffs testified about their employment, termination, and
economic and emotional distress damages. In November 2015,
plaintiffs' counsel filed a motion for attorneys' fees and costs.
On the return date of that motion, defendants' counsel filed
opposition only to the fee application. On December 4, 2015, the
court entered final judgment by default. Thereafter, plaintiffs
recorded a lien on their default judgment under Docket No. J-
021645-16.
Plaintiffs engaged in supplementary proceedings by serving
several information subpoenas. Defendants failed to respond,
which resulted in plaintiffs filing a motion to enforce litigants'
rights in January 2016. That month, a third attorney for
4 A-2906-15T4 defendants filed a partial substitution of attorney and entered
an appearance as defendants' co-counsel. In March 2016, co-counsel
filed another substitution of attorney after defendants' second
counsel withdrew.
On February 10, 2016, defendants filed a cross-motion to
vacate default judgment, quash plaintiffs' subpoenas, reinstate
defendants' answer and reopen discovery for a period of 120 days.
On March 4, 2016, the court denied defendants' cross-motion, and
in a separate order, the court granted plaintiffs' motion to
enforce litigants' rights.
The judge denied defendants' motion to vacate default
judgment and wrote on the order that defendants did not show a
meritorious defense or excusable neglect pursuant to Rule 4:50-1.
The judge stated in his oral opinion that defendants did not oppose
the motion to suppress with prejudice and did not oppose the
request to schedule a proof hearing. In denying defendants' cross-
motion, Judge Carey considered the arguments and stated further
that
[a]s far as excusable neglect goes, it is clear to this court, without question, that the attorneys representing the -- the defendant throughout the course of this litigation ha[ve] been extremely neglectful, dilatory and has just basically ignored the file. But plaintiff[s'] counsel have gone out of their way to notice them, to try to contact them and despite all of the notices and
5 A-2906-15T4 contact, no action was taken, and this court is satisfied without question that there is no excusable neglect here.
On appeal, defendants argue generally that they are entitled
to relief pursuant to Rule 4:50-1. Defendants also contend that
the judge failed to follow the two-step process of suppressing an
answer pursuant to Rule 4:23-5(a)(1) and (2). They contend that
plaintiffs circumvented this rule by prematurely moving to
suppress the answer with prejudice.
We conclude that defendants' arguments as to the suppression
of their answer with prejudice are untimely and without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2906-15T4
JACQUELINE JALIL, LUISA ROJAS, and TANIA MENA,
Plaintiffs-Respondents,
v.
PILGRIM MEDICAL CENTER and DR. NICHOLAS CAMPANELLA,
Defendants-Appellants. _________________________________
Submitted May 2, 2017 – Decided May 9, 2017
Before Judges Fasciale and Sapp-Peterson.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7913- 13.
Crew Schielke, attorney for appellants.
Deutsch Atkins, P.C., attorneys for respondents (Adam J. Kleinfeldt and Kathryn K. McClure, of counsel and on the brief; Michael Malatino, on the brief).
PER CURIAM
Pilgrim Medical Center (PMC) and Nicholas V. Campanella, M.D.
(Dr. Campanella) (collectively defendants) appeal from a March 4, 2016 order denying defendant's cross-motion to vacate default
judgment, quash an information subpoena, reinstate an answer, and
extend discovery. Judge Dennis F. Carey, who was thoroughly
familiar with the case, entered the order and rendered an oral
opinion. We affirm.
In October 2013, Jacqueline Jalil, Luisa Rojas, and Tania
Mena (collectively plaintiffs), filed a complaint against
defendants alleging violations of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49. In February 2014,
defendants filed an answer. Thereafter, the parties proceeded to
pre-trial discovery.
In April 2014, plaintiffs propounded interrogatories and a
notice to produce documents. Defendants failed to respond. In
September 2014, plaintiffs' counsel notified defendants' counsel
about the deficiency. Defendants ignored the notice. Plaintiffs
then filed a motion to suppress defendants' answer without
prejudice pursuant to Rule 4:23-5(a)(1) for failure to answer
interrogatories.
In November 2014, defendants served plaintiffs with
interrogatory answers and responses to plaintiffs' notice to
produce. Plaintiffs' counsel withdrew the motion, but wrote
defendants' counsel a letter identifying the deficiencies in
discovery.
2 A-2906-15T4 Defendants' counsel did not respond to the letter. In May
2015, plaintiffs' counsel sent a sixteen-page deficiency letter
itemizing the inadequate responses that went to the foundation of
the cause of action. The letter provided specifics as to the
discovery problems and stated that defendants responded
"ambiguously" to "nearly every [d]ocument [r]equest," and
explained that many requests went unanswered. Once again,
defendants' counsel did not respond.
In May 2015, plaintiffs filed a second motion to suppress
defendants' answer without prejudice pursuant to Rule 4:23-5(a)(1)
for failure to answer interrogatories. Plaintiffs also filed a
motion to compel production of the outstanding documents pursuant
to Rule 4:23-5(c). In June 2015, defendants' first counsel
withdrew and a new attorney filed a substitution of attorney. Both
lawyers received notice of the motions.
On June 26, 2015, the judge granted both motions, which were
unopposed. He suppressed defendants' answer without prejudice for
failure to answer interrogatories pursuant to Rule 4:23-5(a)(1)
and (2); and on the same date, he compelled defendants to provide
by July 12, 2015, more specific responses to plaintiffs' document
request pursuant to Rule 4:23-5(c). Plaintiffs' counsel properly
served the orders on the new attorney, which defendants duly
ignored.
3 A-2906-15T4 On July 21, 2015, plaintiffs moved to suppress defendants'
answer pursuant to Rule 4:23-2(b), not Rule 4:23-5(a)(2), arguing
that defendants failed to comply with the June 2015 order
compelling production of documents by a date certain. Defendants
did not oppose the motion. On August 7, 2015, the court suppressed
defendants' answer with prejudice. The record reflects
plaintiffs' counsel properly served that order on defendants' new
attorney.
In September 2015, and on notice to counsel, the court
scheduled a proof hearing for October 15, 2015. At the proof
hearing, which defendants and their counsel failed to appear,
plaintiffs testified about their employment, termination, and
economic and emotional distress damages. In November 2015,
plaintiffs' counsel filed a motion for attorneys' fees and costs.
On the return date of that motion, defendants' counsel filed
opposition only to the fee application. On December 4, 2015, the
court entered final judgment by default. Thereafter, plaintiffs
recorded a lien on their default judgment under Docket No. J-
021645-16.
Plaintiffs engaged in supplementary proceedings by serving
several information subpoenas. Defendants failed to respond,
which resulted in plaintiffs filing a motion to enforce litigants'
rights in January 2016. That month, a third attorney for
4 A-2906-15T4 defendants filed a partial substitution of attorney and entered
an appearance as defendants' co-counsel. In March 2016, co-counsel
filed another substitution of attorney after defendants' second
counsel withdrew.
On February 10, 2016, defendants filed a cross-motion to
vacate default judgment, quash plaintiffs' subpoenas, reinstate
defendants' answer and reopen discovery for a period of 120 days.
On March 4, 2016, the court denied defendants' cross-motion, and
in a separate order, the court granted plaintiffs' motion to
enforce litigants' rights.
The judge denied defendants' motion to vacate default
judgment and wrote on the order that defendants did not show a
meritorious defense or excusable neglect pursuant to Rule 4:50-1.
The judge stated in his oral opinion that defendants did not oppose
the motion to suppress with prejudice and did not oppose the
request to schedule a proof hearing. In denying defendants' cross-
motion, Judge Carey considered the arguments and stated further
that
[a]s far as excusable neglect goes, it is clear to this court, without question, that the attorneys representing the -- the defendant throughout the course of this litigation ha[ve] been extremely neglectful, dilatory and has just basically ignored the file. But plaintiff[s'] counsel have gone out of their way to notice them, to try to contact them and despite all of the notices and
5 A-2906-15T4 contact, no action was taken, and this court is satisfied without question that there is no excusable neglect here.
On appeal, defendants argue generally that they are entitled
to relief pursuant to Rule 4:50-1. Defendants also contend that
the judge failed to follow the two-step process of suppressing an
answer pursuant to Rule 4:23-5(a)(1) and (2). They contend that
plaintiffs circumvented this rule by prematurely moving to
suppress the answer with prejudice.
We conclude that defendants' arguments as to the suppression
of their answer with prejudice are untimely and without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Turning to defendants' Rule 4:50-1 contentions, we review the
trial court's decision on a motion to vacate a default judgment
for abuse of discretion. Deutsche Bank Nat'l Trust Co. v. Russo,
429 N.J. Super. 91, 98 (App. Div. 2012). "'The trial court's
determination under [Rule 4:50-1] warrants substantial deference,'
and the abuse of discretion must be clear to warrant reversal."
Ibid. (alteration in original) (quoting U.S. Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 467 (2012)). "[An] abuse of discretion
only arises on demonstration of 'manifest error or injustice[,]'"
Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,
183 N.J. 554, 572 (2005)), and occurs when the trial judge's
6 A-2906-15T4 "decision is made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible
basis." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div.
2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002)).
We will not disturb a default judgment unless the failure to
appear or otherwise defend was excusable under the circumstances
and unless the defendant has a meritorious defense to both the
cause of action and damages. Guillaume, supra, 209 N.J. at 468-
69. Attorney carelessness or lack of proper diligence does not
constitute excusable neglect unless "attributable to [an] honest
mistake" that is compatible with due diligence or reasonable
prudence. Baumann v. Marinaro, 95 N.J. 380, 394 (1984) (quoting
In re T, 95 N.J. Super. 228, 235 (App. Div. 1967)); see also
Quagliato v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971)
(holding that excusable neglect under Rule 4:50-1(a) does not
include an attorney's tardiness on the day a motion he was opposing
was listed and consequently argued and disposed of in his absence).
Even assuming that defendants have a meritorious defense,
which defendants have not established on this record, there exists
no excusable neglect attributable to an honest mistake that was
compatible with due diligence or reasonable prudence. We reject
any suggestion that defendants' attorneys did not receive notices
7 A-2906-15T4 on the various motions or proof hearing. Such an assertion is
belied by the record.
Defendants fare no better under Rule 4:50-1(f), which permits
courts to vacate judgments for "any other reason justifying relief
from the operation of the judgment or order." The Court has stated
that "[b]ecause of the importance that we attach to the finality
of judgments, relief under Rule 4:50-1(f) is available only when
'truly exceptional circumstances are present.'" Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting Baumann
supra, 95 N.J. at 395); see also Guillaume, supra, 209 N.J. at
484. The rule is limited to "situations in which, were it not
applied, a grave injustice would occur." Little, supra, 135 N.J.
at 289. Defendant's inexcusable failure to repeatedly respond to
ongoing discovery deficiencies and an order to compel production
of documents does not qualify as exceptional circumstances
warranting relief under this subsection.
Affirmed.
8 A-2906-15T4