HAN HONG VS. COMMUNITY TRANSPORTATION, INC. (L-2460-16, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5693-16T4
HAN HONG,
Plaintiff-Appellant,
v.
COMMUNITY TRANSPORTATION,
INC. and RANDY BREESE,
Defendants-Respondents,
and
PAULA A. OLMEDO and
MARIBEL VELASCO,
Defendants.
_____________________________________
Argued October 29, 2018 – Decided November 19, 2018
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-2460-16.
David M. Wasserman argued the cause for appellant
(Andrew Park, PC, attorneys; David M. Wasserman, on
the brief).
Neal A. Thakkar argued the cause for respondents
(Sweeney & Sheehan, PC, attorneys; Christopher J.
O'Connell, of counsel; Neal A. Thakkar, on the brief).
PER CURIAM
Plaintiff Han Hong appeals from an August 4, 2017 Law Division order
dismissing his complaint with prejudice in accordance with Rule 4:23-5(a)(2).
We affirm.
By way of background, on March 18, 2016, plaintiff filed a personal injury
complaint against defendants Community Transportation, Inc. and Randy
Breese for injuries allegedly sustained in a motor vehicle accident. Defendants
filed a contesting answer and cross claims against co-defendants Paula A.
Olmedo and Maribel Velasco. On January 31, 2017, counsel for defendants
Community Transportation and Randy Breese (collectively defendants),
propounded interrogatories, specifically Form A and Supplemental
Interrogatories, and a Notice to Produce upon plaintiff, which was served upon
plaintiff's counsel. When plaintiff failed to respond within sixty days as
prescribed by Rule 4:17-4(b), defense counsel sent a letter to plaintiff's counsel
requesting the discovery answers within ten days. When plaintiff again failed
to respond, defense counsel filed a motion to dismiss plaintiff's complaint
without prejudice in accordance with Rule 4:23-5(a)(1). Plaintiff did not oppose
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defendant's motion, which was granted on May 12, 2017. Defense counsel
served the May 12, 2017 order on plaintiff's counsel on May 24, 2017.
Because plaintiff neither provided the outstanding discovery nor moved
to reinstate his complaint, on July 17, 2017, defendants moved to dismiss the
complaint with prejudice in accordance with Rule 4:23-5(a)(2). Two days later,
on July 19, 2017, plaintiff moved to vacate the dismissal and reinstate his
complaint. In a supporting certification, plaintiff's counsel certified that "on or
around July 18, 2017," his office "served [d]efendant[s] with [p]laintiff's
Answers to Form A Interrogatories, [p]laintiff's Response to Request for
Admission, [p]laintiff's Response to Notice to Produce, [p]laintiff's Answers to
Supplemental Interrogatories, along with HIPPA authorizations, and any and all
medical records within [p]laintiff's possession to date." Thus, according to
plaintiff's counsel, "at this time, there is no outstanding discovery."
In opposition to plaintiff's motion, defense counsel certified that plaintiff's
"purported answers" were "completely unresponsive." Specifically, defense
counsel certified that plaintiff "refused to provide even the most basic factual
responses to over sixteen interrogatory questions." Further, in demonstrating
how plaintiff's answers were "not remotely responsive to [the] discovery
demands as propounded," defense counsel pointed out that to corroborate his
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injuries, plaintiff "provide[d] only a copy of the police report, [a] report from
Ridgefield Imaging Center . . . , [a] report from South Dean Orthopedics . . . and
three invoices from medical providers." Plaintiff's counsel countered in a
certification that "[d]uring the course of discovery," his office "had difficulty in
obtaining medical records from [p]laintiff's treating facilities which delayed the
service of [p]laintiff's [a]nswers to [i]nterrogatories." However, "after obtaining
the medical records," his office "served [p]laintiff's certified [a]nswers to
[i]nterrogatories, responses to Notice to Produce, and provided medical
authorizations," along with filing "a motion to vacate [the] dismissal and
reinstate."
On August 4, 2017, during oral argument on the motions, defense counsel
specified that "plaintiff's social security number" was still outstanding "even
though [it is] required under . . . the court rule [F]orm A [I]nterrogatories."
Additionally, according to defense counsel, although plaintiff's insurance carrier
was listed, there was "no [declaration] sheet, no claim number, [and] no policy
number" provided. Also, defense counsel noted plaintiff's "medical bills" were
not provided. As to the medical records, defense counsel stated that although
plaintiff listed several medical providers and described a litany of injuries that
"sounds like it[] [is] from [a] medical report," only "three medical records" were
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provided. According to defense counsel, "[t]here[] [was] an indication that
maybe [these medical reports] exist, but they did[] [not] provide [them] to us."
Defense counsel also asserted that at least "eight" of the responses "in the
[S]upplemental [I]nterrogatories" were "upon information and belief," and were
thus non-responsive. In response, plaintiff's counsel acknowledged that the
discovery was "incomplete," and that plaintiff had been uncooperative and
difficult to contact. However, he argued that the "remedy for incomplete
discovery . . . [was] for the discovery process to continue."
Following oral argument, the motion judge granted defendants' motion to
dismiss the complaint with prejudice and denied plaintiff's motion to reinstate.
The judge acknowledged that pursuant to Rule 4:23-5(a)(2), dismissal with
prejudice is mandated "unless a motion to vacate the previously entered order
of dismissal . . . 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." The judge accepted defendants'
representation that "they still [did] not have a full set of records supporting the
plaintiff's claims, including and most prominently . . . plaintiff's social security
number" as well as an "expert report . . . in light of all of the . . . injuries" plaintiff
listed "in [q]uestion [n]umber [three]" of the interrogatories. As a result, the
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judge determined that "fully responsive discovery ha[d] not been provided . . .
nor ha[d] any exceptional circumstances been demonstrated."
The judge explained:
This complaint was filed on March 18, 2016. At
the point in time that defendants filed their initial
motion to dismiss on April 20, 2017[,] no discovery had
been produced and hence the [c]ourt dismissed the
complaint without prejudice on May 12[, 2017].
Since then, since May 12 all the way through
July[,] no discovery had been produced. And now what
we have are incomplete answers, including a refusal to
turn over the social security number to the defense as
well as producing a very routine and expected
document, namely, an expert report by the plaintiff.
....
At this point after the dismissal without
prejudice[,] plaintiff should have moved on his case.
Candidly[,] plaintiff['s] attorney has described that his
client has not been cooperative. He also represented
. . . that the plaintiff has been noticed of these
proceedings[,] including . . . defendant's attempt to
dismiss the complaint with prejudice after the dismissal
without prejudice was obtained.
Still no social security number, still no expert
report. Two fundamental elements of proof that
plaintiff should turn over to the defense so they can
properly investigate the case.
....
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. . . [P]laintiff himself not being cooperative does
not show exceptional circumstances. It merely shows
his lack of interest in this litigation. . . . In any event,
that[] [is] . . . plaintiff's own doing. I[] [am] not
blaming plaintiff['s] attorney on this. . . . I[] [am]
pointing the finger at plaintiff himself and what this
motion record has . . . led the [c]ourt to conclude, that
plaintiff has been uncooperative.
The judge entered a memorializing order and this appeal followed.
Plaintiff asserts that because "the outstanding discovery consisted of
different discovery than the subject matter of the first-step order," the motion
judge "abused her discretion in continuing to consider [defendants'] request to
dismiss the action with prejudice." According to plaintiff, "the first- step order
and the second-step order must regard the same discovery," and "[i]f there is a
mismatch between the two dismissal orders, the dismissal with prejudice does
not comply with [Rule] 4:23-5."
Our scope of review of a dismissal of a complaint with prejudice for
failure to provide discovery is limited to whether the trial court abused its
discretion. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995).
We will decline to interfere with the exercise of that discretion unless we view
an injustice has been done. St. James AME Dev. Corp. v. City of Jersey City,
403 N.J. Super. 480, 484 (App. Div. 2008) (quoting Cooper v. Consol. Rail
Corp., 391 N.J. Super. 17, 23 (App. Div. 2007)).
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"The dismissal of a party's cause of action, with prejudice, is drastic and
is generally not to be invoked except in those cases in which the order for
discovery goes to the very foundation of the cause of action, or where the refusal
to comply is deliberate and contumacious." Abtrax, 139 N.J. at 514 (quoting
Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)). "Since dismissal
with prejudice is the ultimate sanction, it will normally be ordered only when
no lesser sanction will suffice to erase the prejudice suffered by the non-
delinquent party, or when the litigant rather than the attorney was at fault." Ibid.(quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)).
The well-settled purpose of Rule 4:23-5 is to elicit outstanding discovery
"rather than to punish the offender by the loss of his cause of action . . . ."
Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 374 (App. Div.
1992). To that end, to succeed on a motion to dismiss with prejudice under Rule
4:23-5 for failure to provide discovery, the moving party must strictly comply
with the requirements of the rule, id. at 373, which "involves a two-step
process." Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93
(App. Div. 2008).
"First, the aggrieved party may move for dismissal for non-compliance
with discovery obligations" under paragraph (a)(1) of the rule, and "if the motion
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is granted, the complaint is dismissed without prejudice." Ibid. Rule 4:23-
5(a)(1) dismissals expressly apply to non-compliance with discovery pursuant
to Rule 4:17, pertaining to interrogatories, Rule 4:18, pertaining to demands for
documents, and Rule 4:19, pertaining to demands for medical examinations.
Next,
[i]f an order of dismissal . . . without prejudice has been
entered pursuant to paragraph (a)(1) of this rule and not
thereafter vacated, the party entitled to the discovery
may, after the expiration of [sixty] days from the date
of the order, move on notice for an order of dismissal
. . . with prejudice. . . . The motion to dismiss . . . with
prejudice shall be granted unless a motion to vacate the
previously entered order of dismissal . . . 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).]
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. L.L.C., 423 N.J. Super. 528, 532 (App. Div. 2012).
Here, the record clearly shows the motion judge adhered to the procedural
safeguards established in Rule 4:23-5. Thus, we are satisfied the judge did not
abuse her discretion by dismissing the complaint with prejudice based on
plaintiff's failure to provide "fully responsive discovery" or demonstrate
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"exceptional circumstances." We reject plaintiff's assertion that there was a
mismatch between the discovery requested in step one and step two. Plaintiff
simply selectively responded to duly served discovery demands and failed to
cure the discovery deficiencies in a timely fashion. Under these circumstances,
delay, neglect, and lack of interest on the part of plaintiff coupled with the
failure to produce the requested discovery justify the dismissal with prejudice
under Rule 4:23-5(a)(2).
Affirmed.
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