DR. EMMANUEL OKEREKE VS. ROSS UNIVERSITY SCHOOL OF MEDICINE (L-1137-11, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0892-16T1

DR. EMMANUEL OKEREKE,

Plaintiff-Appellant,

v.

ROSS UNIVERSITY SCHOOL OF
MEDICINE, DR. ENRIQUE FERNANDEZ,
and DR. NANCY PERRI,

Defendants-Respondents.
__________________________________

Argued March 1, 2018 – Decided June 26, 2018

Before Judges Simonelli and Gooden Brown.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
1137-11.

Christian R. Oehm argued the cause for
appellant (Lindgren, Lindgren, Oehm & You,
LLP, attorneys; Christian R. Oehm, on the
briefs).

Glenn T. Graham argued the cause for
respondents (Kelley Drye & Warren, LLP,
attorneys; William S. Gyves, on the brief).

PER CURIAM
 Plaintiff Emmanuel Okereke appeals from the September 30,

2016 trial court order denying his motion to vacate the 2012

dismissal of his complaint against defendants Ross University

School of Medicine (RUSM) and two of its faculty members. The

underlying action arose out of plaintiff's unsuccessful attempt

to secure a medical degree from RUSM where he re-enrolled in 2002.

The court dismissed the complaint with prejudice based on

plaintiff's repeated discovery violations. Plaintiff asserts his

attorneys' misconduct, errors, or negligence constituted

exceptional circumstances warranting relief under Rule 4:50-1(f),

and the court should have excused his four-year delay in applying

for relief. We disagree and affirm.

On February 8, 2011, plaintiff filed a five-count complaint

against defendants, seeking injunctive relief and monetary

damages. In the complaint, plaintiff alleged that while attending

RUSM, the staff "singled [him] out for derogatory and

discriminatory treatment" and "unfairly, arbitrarily and

capriciously [gave him] a failing grade despite his excellent

performance of the requisite academic requirements of his

studies." He further alleged that when he complained, he was

retaliated against and received more unfair treatment, which

ultimately caused him to miss a required portion of the United

States Medical Licensing Examination (USMLE). Plaintiff, who is

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Nigerian, asserted claims for violation of the New Jersey Law

Against Discrimination, tortious interference, defamation, and

breach of contract. He also requested an order compelling

defendants to grant him an extension of time to register, prepare,

and sit for the USMLE.

In a July 8, 2011 order, the court granted in part defendants'

motion to dismiss the complaint for failure to state a claim,

dismissing all but the breach of contract and injunctive relief

claims. Defendants filed a contesting answer on September 22,

2011, and, on November 2, 2011, served plaintiff with

interrogatories and document demands, as well as a notice to

produce plaintiff for deposition on December 15, 2011. By letter

dated November 15, 2011, plaintiff's then-attorney, John Charles

Allen, forwarded the requests to plaintiff, and asked plaintiff

to return the interrogatory answers and requested documents to him

so that he could review them before forwarding them to defendants.

The letter also invited plaintiff to contact Allen if he had "any

questions or would like to speak with [him]."

When plaintiff failed to respond, by letter dated December

13, 2011, defendants informed Allen that if they did not receive

responses by December 27, 2011, they intended to move to compel

discovery or, alternatively, dismiss the complaint for failure to

submit timely responses to their discovery requests.

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Subsequently, defendants agreed to extend the response deadline

to January 11, 2012. When plaintiff failed to respond, on January

12, 2012, Allen sent plaintiff another letter advising him it was

"imperative that [he] provide . . . answers in order to avoid a

[m]otion by [d]efendants to [d]ismiss [his] complaint and case."

In the letter, Allen reiterated that plaintiff should contact him

with "any questions[.]"

Receiving no response and with the March 21, 2012 discovery

end date approaching, on January 18, 2012, defendants filed a

motion to compel discovery responses or, alternatively, dismiss

the complaint. The following day, Allen forwarded defendants'

motion to plaintiff, accompanied by a letter stating it was "at

least [his] fifth . . . request for [plaintiff] to provide [his]

responses to [d]efendants' [d]iscovery [r]equests." Allen

cautioned plaintiff that failure to comply would "very likely"

result in the dismissal of the case.

On February 3, 2012, the court granted defendants' motion and

dismissed plaintiff's complaint without prejudice for failure to

respond to discovery demands. On February 6, 2012, Allen sent

plaintiff an email stating he had "warned [plaintiff] on numerous

occasions that this would occur" if he did not provide answers to

defense counsel. Allen also explained that the dismissal of the

complaint was without prejudice, meaning the court could reinstate

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the complaint if plaintiff submitted complete responses to their

discovery requests within ninety days of the dismissal and paid

the reinstatement fee. Allen implored plaintiff to "[p]lease make

it [his] absolute priority to prepare and provide [him] with [his]

answers . . . without further delay." The email included a read

receipt notification, indicating plaintiff opened the email

approximately thirty minutes after Allen sent it.

On March 1, 2012, plaintiff sent Allen his purported answers

to defendants' interrogatories and supporting documents. However,

before Allen forwarded the responses to defendants, on April 9,

2012, defendants moved to dismiss the complaint with prejudice.

On April 26, 2012, Allen sent a letter to the court requesting an

adjournment of defendants' motion. Allen explained he had "only

recently . . . received [plaintiff's] responses to [d]efendants'

discovery requests" and needed two weeks "to prepare them for

service upon [d]efense [c]ounsel." Allen also informed the court

that plaintiff had been in a remote part of Nigeria caring for ill

family members for several months, making communication difficult.

Based on Allen's representations in his April 26, 2012 letter,

defendants withdrew the motion.

On the same date, Allen advised plaintiff he had "successfully

negotiated the withdrawal of [defendants'] motion[.]" However,

Allen informed plaintiff that his interrogatory responses were

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"quite deficient[,]" as they were uncertified and "[m]any of the

answers [were] not responsive to the questions[.]" Allen told

plaintiff "[i]t [was] imperative that [plaintiff] contact [him]

to discuss these responses as [they] must promptly [correct] the

deficiencies to avoid the potential of another motion to dismiss."

Upon receiving no responses, in a June 5, 2012 letter,

defendants warned Allen that they would renew their motion to

dismiss the complaint with prejudice if plaintiff did not respond

within thirty days. In response, Allen forwarded plaintiff's

uncertified interrogatory responses to defense counsel and

informed him he was still waiting for plaintiff's certification,

which he would forward upon receipt. Defendants' thirty-day

extension expired on July 5, 2012, and plaintiff again failed to

submit a timely response. After granting plaintiff another five-

day extension, to which he also failed to adhere, defendants

renewed their motion to dismiss the complaint with prejudice. On

July 27, 2012, the court granted defendants' unopposed motion and

dismissed plaintiff's complaint with prejudice for failure to

provide responsive answers to interrogatories and requested

documents.

On November 2, 2013, plaintiff retained Christopher J.

Cassar, a New York attorney. On May 9, 2014, Cassar filed a legal

malpractice lawsuit against Allen in the United States District

6 A-0892-16T1
Court for the Southern District of New York in connection with

Allen's representation of plaintiff in his lawsuit against

defendants. A default judgment was entered on October 3, 2014.

However, on September 17, 2015, the default judgment was vacated

and the case was transferred to the United States District Court

for the District of New Jersey on Allen's motion. On March 16,

2016, plaintiff retained a third law firm, the Mark Law Firm, LLC,

to replace Cassar in the malpractice case against Allen.

In September 2016, plaintiff filed a pro se motion pursuant

to Rule 4:50-1, seeking to reinstate his complaint in the

underlying action against defendants. In his supporting

affidavit, plaintiff explained that in March 2011, about a month

after filing suit against defendants, he went to Nigeria "to care

for a family member . . . , as [his] presence and expertise were

necessary for [his family member's] treatment and recovery."

Plaintiff averred he had given Allen instructions to contact his

business partner and guarantor Josephine Circosta, who could reach

him in the remote part of Nigeria where he was located and "was

in constant and continuous contact" with him. He further averred

that he informed Allen in October 2011 that, while in Nigeria, his

mother fell critically ill, requiring him to extend his stay.

Plaintiff acknowledged receiving several communications from

Allen regarding his discovery obligations. However, according to

7 A-0892-16T1
plaintiff, he "was confused and did not know how to respond to the

discovery requests . . . so [he] waited for [Allen] to contact and

instruct [him] . . . how to answer the discovery questions." Then,

after Allen informed him that the court had dismissed his complaint

without prejudice because of his non-compliance, he "undertook to

answer . . . as best as [he] possibly could," without Allen's

guidance. In a May 8, 2012 letter to Allen, plaintiff acknowledged

the deficiencies in his answers and admitted that phone contacts

were difficult and unreliable. Nevertheless, plaintiff asked

Allen to contact him by phone to "correct the deficiencies" or

indicated he would contact Allen to discuss them upon his return

to the United States.

Plaintiff averred that "Allen never called [him] to go through

the discovery" or "advise [him] how to answer the interrogatories."

However, plaintiff acknowledged receiving Allen's May 24, 2012

reply to his May 8, 2012 letter, in which Allen indicated that he

had "attempted several times to reach [plaintiff] by phone,

however, the calls would not go through." Allen also reiterated

that plaintiff could call him at any time.

Plaintiff asserted that on June 6, 2012, Allen informed him

that defendants intended to file a motion to dismiss the complaint

with prejudice "unless [he] certified the [a]nswers to

[i]nterrogatories." He claimed that on June 13, 2012, he emailed

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to Allen "the language required to certify and attest to the

truthfulness of [his] [a]nswers to [i]nterrogatories" that Allen

had previously provided to him. Plaintiff claimed that, although

he did not communicate with Allen between June 2012 and March

2013, he was waiting to hear from him regarding a date for his

deposition or settlement negotiations. He believed Allen "would

reach out and contact either [him] or . . . Circosta if he had any

updates regarding [the] case."

When no updates came, plaintiff returned from Nigeria in June

2013 to confront Allen regarding the status of his case. Plaintiff

claimed Allen called him in July 2013 to request a letter outlining

why he was out of the country, which he provided. Plaintiff also

claimed Allen "promised to send a form for [plaintiff] to fill

out," but he never received it. Meanwhile, according to plaintiff,

Allen refused to tell him "the status of the case" and "kept

avoiding [his] questions." As a result, plaintiff lost confidence

in Allen and retained Cassar in November 2013.

Plaintiff claimed he was unaware that the dismissal motion

had been filed or granted until June 18, 2014, after he retained

Cassar's firm. Plaintiff returned to Nigeria in November 2015 to

attend a funeral and remained there until January 2016. In

February 2016, he was advised that Cassar's firm could not proceed

with the litigation in New Jersey because Cassar was not licensed

9 A-0892-16T1
to practice in New Jersey and the associate on the case who "was

licensed to practice in New Jersey had earlier left the firm." At

that point, plaintiff sought out a New Jersey attorney and retained

the Mark Law Firm to represent him in his case against Allen.

Plaintiff explained he was unfamiliar with the legal system

and had "relied upon [his] attorneys to properly assist [him],"

but both Allen and Cassar "continuously misled and misinformed"

him. Plaintiff claimed the underlying complaint was dismissed

"through no fault of [his] own" and attributed the dismissal "to

the failures of . . . Allen." As to Cassar, plaintiff averred

"Cassar also failed to file the [reinstatement] motion, despite

his representations . . . that he would do so."

At the September 30, 2016 hearing on the Rule 4:50-1(f)

motion, the court questioned plaintiff's inaction since June 2014,

when plaintiff claimed he first learned of the dismissal.

Plaintiff responded he "started looking for other attorneys" but

"couldn't find anybody to assist [him,]" became "extremely

frustrated[,]" and kept writing to Cassar. Following oral

argument, the court denied the motion. The court noted that in

order to obtain relief, plaintiff needed to show "[e]xtraordinary

circumstances[,]" which are "circumstances beyond the ability of

the . . . moving party[] to file a [m]otion," that are "peculiar

to the individual" and "would make it unconscionable and an

10 A-0892-16T1
injustice to allow the [j]udgment to stand." The court concluded

plaintiff failed to demonstrate extraordinary circumstances

because he had "been derelict from the very beginning."

To support its finding, the court cited plaintiff's

abandonment of his lawsuit through his two-year absence from the

country, his failure to communicate with Allen after learning his

case was in danger of dismissal, and his two-year delay in filing

a motion to vacate. In contrast, the court noted that while

"plaintiff was out of the country[,] his lawyer sent him

communications, which he received over a period of many months,

and told him that he must file [c]ertified [a]nswers to the

[i]nterrogatories sought by the defendant or the [c]omplaint would

be dismissed." The court rejected plaintiff's contention that it

was his lawyer's fault that the case was dismissed because Allen

ignored plaintiff's requests for assistance. The court entered a

memorializing order and this appeal followed.

On appeal, plaintiff renews his argument that he is entitled

to relief under Rule 4:50-1(f) because the conduct of his previous

counsel constituted "exceptional circumstances." Plaintiff argues

the court erred by failing to apply the analysis set forth in

Jansson v. Fairleigh Dickinson University, 198 N.J. Super. 190,

195 (App. Div. 1985) since the dismissal was the result of his

attorney's failure to help him provide timely interrogatory

11 A-0892-16T1
answers despite his requests for assistance. He also contends his

"application was made within a reasonable amount of time from

being finally made aware of the true case status and his rights

and options."

A trial court's decision on a Rule 4:50-1 motion is entitled

to "substantial deference, and should not be reversed unless it

results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n

v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of discretion

may be found when a decision lacks a "rational explanation,"

represents an inexplicable "depart[ure] from established

policies," or rests "on an impermissible basis." Id. at 467-68

(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123

(2007)). Our task is not "to decide whether the trial court took

the wisest course, or even the better course, since to do so would

merely be to substitute our judgment for that of the lower court.

The question is only whether the trial judge pursued a manifestly

unjust course." Gittleman v. Cent. Jersey Bank & Tr. Co., 103

N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52

N.J. 503 (1968).

Rule 4:50-1 provides various grounds for a court to relieve

a party from a judgment. Under subsection (f), the judgment should

be set aside for "any other reason justifying relief from the

operation of the judgment or order." R. 4:50-1(f). "[R]elief

12 A-0892-16T1
under Rule 4:50-1(f) is available only when 'truly exceptional

circumstances are present'" such that "were it not applied, a

grave injustice would occur." Guillaume, 209 N.J. at 484 (quoting

Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286, 289 (App.

Div. 1994)). A party seeking relief under subsection (f) should

file a motion "within a reasonable time" after the judgment's

entry, "which, in some circumstances, may be less than one year."

Orner v. Liu, 419 N.J. Super. 431, 437 (App. Div. 2011); R. 4:50-

2.

An attorney's error, misconduct or incompetence may

constitute exceptional circumstances warranting relief under Rule

4:50-1(f). Jansson, 198 N.J. Super. at 196. In Jansson, the

plaintiffs provided their interrogatory answers to their attorney,

who then failed to submit them to the defendants by the applicable

deadline, resulting in the dismissal of the complaint. Id. at

192-93. The attorney then "repeatedly misrepresented that the

trial was imminent when the plaintiffs inquired as to the status

of the case." Id. at 193. The matter remained dormant until the

plaintiffs dismissed their attorney and retained new counsel who

promptly moved to reinstate the complaint, albeit three years

after the dismissal order was entered. Ibid. In reversing the

trial court's order denying the reinstatement, we enunciated four

factors courts should consider in determining whether the rules

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should be relaxed: "(1) the extent of the delay [between dismissal

and the motion to reinstate], (2) the underlying reason or cause,

(3) the fault or blamelessness of the litigant, and (4) the

prejudice that would accrue to the other party." Id. at 195.

In Parker v. Marcus, 281 N.J. Super. 589, 593-94 (App. Div.

1995), we extended the Jansson analysis to cases involving attorney

misconduct unrelated to discovery, and in Ridge at Back Brook, LLC

v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014), we applied

the Jansson factors to errors made by pro se litigants when their

acts or omissions would have been grounds to vacate a judgment if

committed by an attorney. However, in Albarran v. Lukas, 276 N.J.

Super. 91 (App. Div. 1994), we questioned whether subsequent

amendments to the court rules for discovery default rendered the

Jansson analysis inapplicable. Under the amended rule, a party

who defaults on his or her discovery obligations has ample

opportunities to cure the deficiency. See R. 4:23-5; see also

Albarran, 276 N.J. Super. at 94-95. In Albarran, following the

entry of an order of dismissal with prejudice pursuant to Rule

4:23-5(a)(2) for failure to answer interrogatories, plaintiffs

moved twice to reinstate their complaint, which was ultimately

granted by the trial court. Albarran, 276 N.J. Super. at 93-94.

We reversed because, inasmuch as the amended rule gave a

party "[]four[] opportunities . . . to avoid dismissal . . . with

14 A-0892-16T1
prejudice" due to discovery default, "we perceive[d] no reason why

[the] approach in Jansson should continue to govern this [R. 4:23-

5] discovery default problem." Id. at 95. We explained that

"[a]fter a party has defaulted in [his or] her discovery

obligations" and "foregone four opportunities to discharge [their]

responsibilities as a litigant[,]" "the New Jersey Court Rules

provide three additional opportunities to a party who seeks to

avoid the consequence contemplated by the rule[,]" by virtue of a

motion for reconsideration pursuant to Rule 4:49-2, an appeal

pursuant to Rule 2:4-1(a), and a motion for relief from a final

order pursuant to Rule 4:50-1. Id. at 94.

Here, plaintiff has not shown that the trial court's refusal

to grant relief under Rule 4:50-1(f) was a mistaken exercise of

discretion. Plaintiff has not demonstrated that the dismissal of

the complaint was the result of attorney error, misconduct or

incompetence. On the contrary, the record is replete with letters

and emails from Allen imploring plaintiff to respond to defendants'

discovery requests, inviting plaintiff to contact him with

questions, and informing him that defendants intended to move for

dismissal if he did not correct the deficiencies. Indeed, the

trial court found that the failure to comply with the discovery

obligations was entirely plaintiff's fault, rather than his

attorney's, noting plaintiff had been derelict from the very

15 A-0892-16T1
beginning. Even applying the Jansson analysis, all four factors,

particularly "the fault . . . of the litigant[,]" militate against

granting plaintiff relief. 198 N.J. Super. at 195. As plaintiff's

own actions caused the dismissal, this case falls far short of the

"truly exceptional circumstances" required for relief under Rule

4:50-1(f), and we do not believe that any of the aforementioned

decisions require a different result.

Affirmed.

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