NOT FOR PUBLICATION WITHOUT THE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-5123-18T2
HENRY CHEN,
Plaintiff-Appellant,
v.
PEP BOYS, INC.,
Defendant-Respondent.
_____________________________
Submitted May 26, 2020 – Decided July 13, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6292-18.
Ameri & Associates, attorneys for appellant (Nima
Ameri, on the brief).
Sweeney & Sheehan, PC, attorneys for respondent
(Christopher J. O'Connell, of counsel; Neal A. Thakkar,
on the brief).
PER CURIAM
Plaintiff Henry Chen appeals from the dismissal of his complaint with
prejudice pursuant to Rule 4:23-5(a)(2). In the absence of any record evidence
that Chen was advised of his attorney's multiple lapses, or that the court made a
sufficient effort to obtain plaintiff's counsel's compliance with the Rule, we are
constrained to reverse the dismissal order, and remand for the trial court to
determine whether sanctions or other appropriate conditions for reinstatement
of the complaint should be imposed.
I.
Although the record is deficient in various respects, as we discuss below,
we discern the following facts.
In his August 2018 complaint, Chen alleged that employees of defendant
crashed his sports car, which he had left for repairs. Asserting various statutory
and common law causes of action, he sought damages for the mechanical and
body repairs he had to make, as well as replacement transportation costs. He
attached estimates for the repairs exceeding $9000.
Defendant answered the complaint and, on September 25, 2018,
propounded Form B interrogatories, and a notice to produce. After plaintiff's
counsel did not timely respond, defense counsel wrote to counsel, stating that a
motion would ensue if answers were not forthcoming. Having received nothing,
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2
defendant then filed a motion to dismiss without prejudice under Rule 4:23-
5(a)(1). The motion was supported by an appropriate certification of movant's
counsel. Plaintiff's counsel did not respond to the motion, and the court entered
the order of dismissal without prejudice on March 5, 2019. Defense counsel
then served it on plaintiff's counsel. The record does not indicate that plaintiff's
counsel ever advised Chen of the dismissal, as Rule 4:23-5(a)(1) requires.
On May 2, 2019, defense counsel filed a motion for dismissal with
prejudice, fifty-eight days after entry of the March 5 order, although the Rule
requires that a movant wait sixty days from the date of the order of dismissal
without prejudice, before moving for an order of dismissal with prejudice. R.
4:23-5(a)(2). The motion was initially made returnable on May 24, 2019.
In the days preceding the return date, the court twice unsuccessfully tried
to reach plaintiff's counsel by telephone, because plaintiff's counsel had not filed
the certification, as Rule 4:23-5(a)(2) requires, stating that the client was
previously served with the without-prejudice dismissal order, and had been
served with the motion to dismiss with prejudice.1 The court clerk sent two
written notices to plaintiff's counsel, on May 22 and 23, 2019, notifying counsel
1
We rely on the trial court's supplemental statement of reasons for this fact.
A-5123-18T2
3
to appear in court on May 24 if no opposition would be filed to the motion to
dismiss with prejudice.
In a letter to the court on the return date, plaintiff's counsel stated the
attorney who handled the case was "no longer with the firm," and alleged the
outstanding discovery was produced the previous day. Plaintiff's counsel
requested an adjournment to enable him to resolve any outstanding discovery
issues with defense counsel. Plaintiff's counsel attached a confirmatory email
to defense counsel dated May 23 purporting to transmit the discovery responses.
Plaintiff's counsel also purported to attach for the court a copy of the discovery
responses. The attachment was evidently incomplete. 2 It included the
explanatory responses to the notice to produce, but not the actual produced
documents. Lines at the bottom of the page of the interrogatory answers were
cut off in various spots. And answers to two interrogatories were left blank.
Interrogatory 9 asked for the "date upon which claimant authorized the repair of
the motor vehicle," and interrogatory 10 asked for the "date on which repairs
were completed." Conceivably, this information was included in the repair bill,
which plaintiff purported to provide in response to interrogatory 8. However,
2
We rely on the documents that plaintiff's counsel has included in plaintiff's
appendix immediately following the copy of the letter to the trial judge.
A-5123-18T2
4
we cannot be sure because counsel failed to include his document response in
the record on appeal. Furthermore, as we note below, defendant's counsel later
asserted that plaintiff's counsel omitted the repair bills in the disclosure to
defendant.
The court adjourned the motion to dismiss with prejudice until June 11,
2019. During that time, plaintiff's counsel never filed formal opposition to
defendant's motion or a motion to reinstate plaintiff's complaint, nor did counsel
ever file a certification as the Rule requires, confirming that plaintiff himself
was aware that his lawsuit was on the brink of dismissal. Notably, the May 2019
discovery responses that plaintiff's counsel served were accompanied by
certifications from plaintiff dated December 22, 2018.
As reflected in an email exchange between defendant's counsel and
plaintiff's counsel's office manager, defense counsel declined to withdraw the
motion to dismiss with prejudice. Plaintiff's counsel's office manager sent an
email to defense counsel purporting to confirm a conversation in which defense
counsel agreed to accept plaintiff's responses as complete; and defense counsel
responded that he said no such thing; rather, he said only that his associate would
review the responses.
A-5123-18T2
5
According to the trial court's decision, defendant filed a "reply brief" in
further support of its motion, noting that plaintiff had failed to file a motion to
vacate the dismissal without prejudice and asserting that plaintiff's discovery
responses were deficient. Defendant highlighted the non-responses to
interrogatories 9 and 10; blank pages in the responses; and the failure to attach
the repair bills although they were referenced in the answers.
The trial court granted the motion. The trial court reviewed the two-step
process under Rule 4:23-5. The judge concluded that plaintiff failed to cure the
discovery deficiency, noting that plaintiff's interrogatory answers and document
production were not "fully responsive." The court also noted that plaintiff did
not demonstrate that the "specific procedures for serving the order of dismissal
were followed." Also, plaintiff failed to file an appropriate motion, along with
payment of the restoration fee, for reinstatement of his complaint. The court
relied on the statement in Rule 4:23-5(a)(2) that "[t]he 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 delinq uent party
and either the demanded and fully responsive discovery has been provided or
exceptional circumstances are demonstrated."
A-5123-18T2
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On appeal, plaintiff's counsel argues the trial court misapplied its
discretion in dismissing the complaint with prejudice, as plaintiff supplied
responsive answers to defendant's requests; to the extent he did not, he should
have been given the opportunity to file more specific answers; and plaintiff's
counsel should have been given the opportunity to present oral argument.
In support, counsel includes a factual recitation that attempts to blame the
neglect of the file on an associate later separated from the firm; asserts that
plaintiff himself met with the associate in December 2018 to review responses;
plaintiff's counsel only learned of the failure to respond to discovery when the
motion to dismiss with prejudice was filed; and plaintiff's counsel believed that
defense counsel would have conferred with him about any deficiencies in the
responses. None of these factual allegations are supported by competent
evidence, such as a certification of counsel.
Plaintiff's counsel also argues that the court erred in denying a request for
oral argument, although the record includes no evidence of such a request.
Plaintiff's counsel contends that defendant was delinquent in responding to
discovery, but, again, plaintiff provides no evidence that any discovery requests
were served on defendant. By contrast, defendant's counsel certified in support
A-5123-18T2
7
of the initial motion for dismissal without prejudice that plaintiff had not
propounded any discovery requests.
II.
We review the trial court's order for an abuse of discretion. A & M Farm
& Garden Center v. Am. Sprinkler Mechanical, LLC, 423 N.J. Super. 528, 534
(App. Div. 2012). Were we satisfied that Chen was made aware of his attorney's
multiple lapses, we would have no hesitation in affirming the order of dismissal
with prejudice. However, Chen's attorney evidently failed to comply with the
obligation to inform Chen of defendant's efforts to dismiss his lawsuit; and the
trial court's effort to obtain the attorney's compliance fell short. To assure that
Chen's rights are protected, we reverse and remand.
A.
Dismissal of a complaint under Rule 4:23-5 follows a two-step process.
First, the aggrieved party may move for dismissal without prejudice for non -
compliance with discovery obligations. R. 4:23-5(a)(1). If the motion is
granted, specific procedures for serving the order of dismissal must be followed ,
which we review below. Ibid. Upon providing full and responsive discovery,
the delinquent party may move to vacate the dismissal without prejudice "at any
time before the entry of an order of dismissal . . . with prejudice." Ibid.
A-5123-18T2
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Second, if a delinquent party fails to cure its discovery delinquency, then
"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 . . . with prejudice."
R. 4:23-5(a)(2). The motion to dismiss with prejudice "shall be granted unless"
the delinquent party satisfies two requirements: (1) "a motion to vacate the
previously entered order of dismissal . . . without prejudice has been filed by the
delinquent party and [(2)] either the demanded and fully responsive discovery
has been provided or exceptional circumstances are demonstrated." Ibid.
(emphasis added).
Plaintiff failed to satisfy either of those two requirements for fending off
dismissal. Plaintiff did not file a motion to vacate the previously entered order
of dismissal. And, plaintiff has not demonstrated that he filed "fully responsive
discovery." The Rule has dual objectives: to compel discovery, thereby
promoting resolution of disputes on the merits; and granting aggrieved parties
the opportunity "to seek final resolution through a dismissal process." St. James
AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div.
2008).
We recognize that a court must carefully scrutinize discovery responses
submitted on the eve of a motion to dismiss with prejudice. Adedoyin v. Arc of
A-5123-18T2
9
Morris Cty. Chap., Inc., 325 N.J. Super. 173, 181 (App. Div. 1999).
"[I]ncomplete answers cannot be automatically considered as a failure to answer
under R. 4:23-5[,]" nor can the party seeking answers "control the future course
of the proceeding simply by asserting that the answers were not fully
responsive." Id. at 180-81. If the court determines there is a "bona fide dispute
over responsiveness or insufficiency of interrogatory answers, the judge should
first identify those questions[,]" and if more complete answers are needed, the
court should adjourn the motion to allow such answers, rather than dismiss with
prejudice. St. James AME Dev. Corp., 403 N.J. Super. at 486; see also
Zimmerman v. United Services Auto. Ass'n, 260 N.J. Super. 368, 377-78 (App.
Div. 1992).3
However, in Adedoyin, St. James AME Dev., and Zimmerman the
delinquent party filed a motion to vacate the prior dismissal order, unlike
plaintiff here. Furthermore, we cannot conclude that there was a bona fide
dispute over the sufficiency of plaintiff's answers. As a threshold matter, our
review is hampered by plaintiff's counsel's failure to provide us with a complete
3
We reject plaintiff's argument that defendant's counsel was obliged to submit
a certification that he attempted to resolve the discovery dispute before filing
his motion to dismiss with prejudice. Rule 4:23-5(a)(3) expressly requires such
a certification only in advance of a motion for dismissal without prejudice under
Rule 4:23-5(a)(1).
A-5123-18T2
10
set of the responses served on defendant's counsel. In particular, we lack the
document production. Plaintiff was obliged to include in this appendix "such
other parts of the record . . . as are essential to the proper consideration of the
issues." R. 2:6-1(a)(1). "Nor are we obliged to attempt review of an issue when
the relevant portions of the record are not included." Cmty. Hosp. Grp., Inc. v.
Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005).
In any event, it is clear, from what has been provided, that in response to
two interrogatories, plaintiff did not provide incomplete answers; he provided
no answers. Responsive information conceivably may have been found in other
documents, such as the repair bills. However, defendant asserted that plaintiff
did not produce them, despite reference to them in the answers.
B.
Nonetheless, we are constrained to reverse the order dismissing the
complaint with prejudice, because plaintiff's counsel evidently failed to apprise
Chen that his lawsuit was on the brink of dismissal, and the court did not take
sufficient steps to obtain compliance. The trial court is obliged to pay
"meticulous attention . . . to those provisions which are intended to afford a
measure of protection to the party who is faced with the ultimate litigation
disaster of termination of his cause." Zimmerman, 260 N.J. Super. at 376-77.
A-5123-18T2
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Plaintiff's counsel was obliged to serve the original order of dismissal
without prejudice on Chen. R. 4:23-5(a)(1). We may assume counsel failed to
do so, since no such notice is included in the record, and plaintiff's counsel
claimed in his letter to the trial judge that he only learned of the without -
prejudice order after receiving the motion to dismiss with prejudice. Moreover,
plaintiff's counsel – not the allegedly neglectful former associate – was obliged
to file and serve an affidavit with the court, seven days before the return date of
the motion to dismiss with prejudice, stating that Chen received the first order,
and was notified that a second motion was then pending to dismiss his cause
with prejudice. As no such affidavit is before us, we conclude none was filed
and Chen remained in the dark.
The Rule provides for the court to take action if the delinquent party's
attorney "fails to timely serve the client with the original order of dismissal . . .
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
. . . with prejudice." R. 4:23-5(a)(3). Barring "exceptional circumstances," "the
court shall . . . 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." Ibid.
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In A & M Farm & Garden Ctr., we reversed an order of dismissal with
prejudice because the court failed to take action necessary to obtain the
delinquent counsel's compliance with his obligation to inform his client.
[W]hen a court considers a motion to dismiss or
suppress a pleading with prejudice, and there is nothing
before the court showing that a litigant has received
notice of its exposure to the ultimate sanction, the court
must take some action to obtain compliance with the
requirements of the rule before entering an order of
dismissal or suppression with prejudice. Further, the
court must set forth what effort was made to secure
compliance on the record or on the order.
[423 N.J. Super. at 539.]
We held that the action necessary to obtain compliance "may be as simple as
having a law clerk call the attorney for the delinquent party when the court has
not received the affidavit required by Rule 4:23-5(a)(2) seven days prior to the
return date." Id. at 538. However, "[i]n other circumstances, the issuance of an
order to show cause may be warranted." Ibid.
We recognize the trial judge attempted to obtain compliance by trying to
reach plaintiff's counsel by telephone, and by ordering him to attend court on
the initial return date. Thereafter, the court received plaintiff's counsel's letter.
Although it asserted that discovery was provided, it failed to address compliance
with the obligations to notify Chen. A week before the June 11 adjourned return
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13
date, the court had still not received the required affidavit from counsel. As in
A & M Farm & Garden Center, "when . . . the circumstances do not provide the
court with the basis for an informed decision as to whether the rights of the
litigant had been adequately protected, the court must take some action to ensure
that is the case." Id. at 539. As the court's actions fell short, we are constrained
to reverse the order of dismissal.
We remand for the court to consider anew defendant's motion to dismiss
the complaint with prejudice, while allowing defendant to supplement its motion
papers as it deems appropriate, and allowing plaintiff to file any additional
supplemental papers he deems appropriate. The court shall establish a
reasonable schedule for the filing of any supplemental papers and for oral
argument on the motion. We do not foreclose plaintiff from serving fully
complete answers to the outstanding discovery demands or from filing a motion
to vacate the previously entered order of dismissal. See R. 4:23-5(a)(2). If, on
remand, plaintiff's counsel fails to serve the original order of dismissal without
prejudice on plaintiff, see R. 4:23-5(a)(1), or "fails to file and serve the affidavit
required by [Rule 4:23-5(a)(3)], or fails to appear on the return date of the
motion to dismiss," the court shall comply with the requirements of Rule 4:23-
5(a)(3) in its disposition of defendant's motion.
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Upon remand, plaintiff's counsel's past lapses, as well as any lapses that
occur following remand, "may be adequately addressed by the imposition of
other appropriate sanctions, such as attorney's fees and costs, if deemed
appropriate by the trial court." Ibid. The trial court shall determine, in its
discretion, "whether sanctions or other conditions for reinstatement of the
complaint should be imposed[,]" including service of complete and responsive
answers to defendant's discovery demands. Id. at 540.
Although plaintiff has prevailed in securing reversal of the order
dismissing his complaint with prejudice, the costs of appeal shall be taxed by
the clerk on plaintiff's counsel. R. 2:11-5.
Finally, plaintiff's counsel shall serve Chen with a complete copy of our
decision by regular and certified mail within seven days of its issuance, and shall
file with the trial court, and serve on defendant's counsel, a certification of such
service.
Reversed and remanded. We do not retain jurisdiction.
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