SYNKRIOM, INC., ETC. VS. LARSEN & TOUBRO INFOTECH LIMITED, INC., ETC. (L-4233-18, 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NOT FOR PUBLICATION WITHOUT THE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-1916-19

SYNKRIOM, INC., a New
Jersey Corporation,

Plaintiff-Appellant,

v.

LARSEN & TOUBRO INFOTECH
LIMITED, INC., a New Jersey
Foreign Corporation,

Defendant-Respondent.
______________________________

Argued February 10, 2021 – Decided April 13, 2021

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-4233-18.

Steven E. Taylor argued the cause for appellant (Taylor
Law Firm, LLC, attorneys; Steven E. Taylor, on the
briefs).

Jonathan E. Ginsberg argued the cause for respondent
(Bryan Cave Leighton Paisner, LLP, attorneys;
Jonathan E. Ginsberg, on the brief).
PER CURIAM

Plaintiff, Synkriom, Inc., appeals from the October 25, 2019 order

granting defendant Larsen & Toubro Infotech Limited, Inc.'s motion to dismiss

plaintiff's complaint with prejudice pursuant to Rule 4:23-5(a)(2). We affirm.

The following facts are drawn from the record. On June 8, 2017, plaintiff

entered into a Technical Recruitment Agreement (TRA) with defendant whereby

plaintiff would provide employee-recruitment services for defendant. In

October 2017, plaintiff was denied access to defendant's internal recruiting

submission systems and defendant informed plaintiff it was terminating the

agreement.

In July 2018, plaintiff filed a complaint against defendant for breach of

contract; breach of the covenant of good faith and fair dealing; and promissory

estoppel. In August 2018, defendant timely filed its answer which contained a

demand for documents referred to in the complaint, pursuant to Rule 4:18-2. On

September 6, 2018, plaintiff provided twenty-three pages of email

correspondence and a copy of the TRA.

On January 28, 2019, defendant served plaintiff its first set of request of

production of documents and first set of interrogatories. The deadline for the

document request was March 4, 2019. The deadline for answers to the

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interrogatories was March 29, 2019. During part of this time, plaintiff's counsel

experienced a serious health condition, which required hospitalization and an

extended period of recovery at home. As a result, timely answers were not

submitted.

Deadlines passed and after having received no response to its discovery

demands, on April 15, 2019, defendant emailed plaintiff reminding of its

outstanding discovery obligations. Attached to the email was a series of

deposition notices. Receiving no response, defendant sent a follow-up email on

April 24, reiterating that plaintiff should fulfill its discovery obligations no later

than April 29.

The parties later agreed to extend the discovery period as follows:

(i) Plaintiff shall fully respond to [d]efendant's [f]irst
[s]et of [i]nterrogatories, dated January 28, 2019, and
[d]efendant's [f]irst [r]equest for the [p]roduction of
[d]ocuments, dated January 28, 2019 (including written
responses and documents produced in response thereto)
no later than May 24, 2019, and (ii) [p]laintiff shall
serve interrogatories or document requests, if any, by
May 24, 2019.

On the May 24, 2019 deadline, plaintiff responded to defendant's

discovery request by re-submitting the same documents it sent on September 6,

2018. Defendant's counsel wrote to plaintiff informing that the propounded

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discovery did not satisfy the outstanding discovery obligations, but plaintiff did

not respond.

On June 21, 2019, defendant filed a motion to dismiss the complaint

without prejudice under Rule 4:23-5(a)(1). Plaintiff did not oppose the motion

and made no efforts to comply with its discovery obligations. On July 26, 2019,

the trial court dismissed plaintiff's complaint without prejudice, pursuant to Rule

4:23-5(a)(1).

During July 2019, plaintiff's counsel underwent a medical procedure and

treatments which again required a period of recovery. On September 27, 2019

defendant moved to dismiss plaintiff's complaint with prejudice pursuant to Rule

4:23-5(a)(2). On October 9, 2019, plaintiff provided responses to the first set of

interrogatories, and again provided the same set of documents previously sent

on May 24, 2019, and September 6, 2018.

One week later, plaintiff filed its opposition to the motion to dismiss with

prejudice. Plaintiff argued that the untimely discovery responses were the result

of counsel's medical issues, constituting exceptional circumstances which

arguably excused non-compliance with discovery requests.

On October 25, 2019, the trial court dismissed the complaint with

prejudice pursuant to Rule 4:23-5(a)(2). The two reasons the court gave for the

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dismissal were plaintiff's failure to file a motion to vacate the prior order without

prejudice and plaintiff's failure to demonstrate extraordinary circumstances

warranting the denial of the motion.1 This appeal followed.

We review a court's decision whether to reinstate or dismiss a complaint

under an abuse of discretion standard. St. James AME Dev. Corp. v. City of

Jersey City, 403 N.J. Super. 480, 487 (App. Div. 2008).

Dismissal under Rule 4:23-5 is a two-step process that must be strictly

adhered to before a court can impose the sanction of dismissal for failure to

fulfill a discovery obligation. Thabo v. Z Transp., 452 N.J. Super. 359, 369

(App. Div. 2017) (citing St. James, 403 N.J. Super. at 484). Dismissal of a

complaint with prejudice is among the most serious sanctions a court can

impose, and as such, it should be imposed "only sparingly" and will normally be

"ordered only when no lesser sanction will suffice to erase the prejudice suffered

by the non-delinquent party." Robertet Flavors, Inc. v. Tri-Form Const. Inc.,

1
The court's reasons were included at the bottom of the order as follows: " For
the reasons set forth by [the court], and in consideration of all materials
presented to the [c]ourt, the following motion has been granted according to
R[ule] 4:23-5(a)(2). []Plaintiff has not filed a motion to vacate the prior [o]rder
without prejudice. []Plaintiff has not satisfied extraordinary circumstances that
warrants the denial of said motion."

While less than a robust nod to the requirements outlined in Rule 1:7-4, the
court's reasons are adequate for meaningful judicial review.
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203 N.J. 252, 274 (2010) (Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499,

514 (1995); and Zaccardi v. Becker, 88 N.J. 245, 253 (1982)). Because of the

seriousness of dismissal with prejudice as a punishment, the requirements of the

Rule "must be scrupulously followed and technically complied with." Thabo,

452 N.J. Super. at 369 (citing Sullivan v. Coverings & Installation, Inc., 403

N.J. Super. 86, 95 (App. Div. 2008)).

Prior to dismissal with prejudice, a moving party must file a motion to

dismiss the complaint without prejudice pursuant to Rule 4:23-5(a)(1). Ibid.

This Rule provides, in part:

If a demand for discovery pursuant to R. 4:17, R. 4:18,
or R. 4:19 is not complied with and no timely motion
for an extension or a protective order has been made,
the party entitled to discovery may . . . move, on notice,
for an order dismissing or suppressing the pleading of
the delinquent party. The motion shall be supported by
an affidavit reciting the facts of the delinquent party's
default and stating that the moving party is not in
default in any discovery obligations owed to the
delinquent party. Unless good cause for other relief is
shown, the court shall enter an order of dismissal or
suppression without prejudice.

Per the stipulation entered by the parties on April 24, 2019, responses to

defendant's outstanding interrogatories and document requests were due on May

24, with the discovery period as a whole being extended until August 23, 2019.

Plaintiff's argument that its responses were due on August 23, 2019 is contrary

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to the plain terms of the stipulation, as the agreement makes clear that responses

to the first set of interrogatories and requests for documents are due "no later

than May 24, 2019," clearly delineating it from the court-imposed discovery end

date.

With no response from plaintiff, on May 29, defendant again extended the

deadline, informing plaintiff that if it did not receive responses to its discovery

requests by June 3, 2019, it would seek intervention from the court. After this

final deadline passed, again, with no response, defendant filed a notice of its

motion to dismiss under Rule 4:23-5(a)(1) on July 26, 2019. This notice

complied with the requirement of the Rule that the affidavit outline the

circumstances of the non-moving party's non-compliance. As such, the trial

court's dismissal of the complaint without prejudice under Rule 4:23-5(a)(1) was

warranted.

Once a trial court dismisses a complaint without prejudice, the moving

party may pursue the second step of a Rule 4:23-5(a)(2) action, dismissal with

prejudice. If the delinquent party does not cure its discovery deficiency, the

moving party may move for a motion to dismiss the complaint with prejudice ,

sixty days after the complaint was dismissed without prejudice, under Rule 4:23-

5(a)(1). Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (App.

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Div. 2008). In order to restore the complaint, the delinquent party must pay the

court $100 if within thirty days of the dismissal, or $300 if after thirty days but

before ninety days. R. 4:23-5(a)(1). The complaint may be restored at any time

prior to dismissal with prejudice if the delinquent party cured its deficient

discovery and satisfied any other conditions imposed on them by the court.

Sullivan, 403 N.J. Super. at 94.

In order to defeat a motion for dismissal with prejudice the delinquent

party must demonstrate "extraordinary circumstances." Rodriguez v. Luciano,

277 N.J. Super. 109, 112 (App. Div. 1994). The delinquent party must prove

circumstances "which substantially interfered with the party's ability to meet the

discovery obligations." Ibid. (quoting Suarez v. Sumitomo Chem. Co., 256 N.J.

Super. 683, 688-89 (Law Div. 1991)).

Here, the trial court dismissed the complaint without prejudice on July 26,

2019. Plaintiff did not oppose the dismissal. On September 27, 2019, sixty-

three days after the entry of the without prejudice dismissal, defendant's counsel

moved to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2).

Over plaintiff's objection, the trial court entered an order dismissing the

complaint with prejudice on October 25, 2019. Although plaintiff's counsel

asserted that his medical issues prevented plaintiff from completing the

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discovery responses, satisfying the "extraordinary circumstances" exception to

dismissal, plaintiff did not move to vacate the dismissal without prejudice under

Rule 4:23-5(a)(1). Rule 4:23-5(a)(2) requires that

[t]he 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.

Plaintiff's opposition to the motion to dismiss the complaint with prejudice

and attached a certification were not sufficient to meet the Rule's requirements.

Plaintiff did not pay the restoration fees required under Rule 4:23-5(a)(1). Thus,

even if extraordinary circumstances had been shown, the court was within the

bounds of discretion dismissing the complaint with prejudice because plaintiff

did not follow the basic dictates of the Rule. Rodriguez, 277 N.J. Super. at 112.

Moreover, plaintiff did not demonstrate extraordinary circumstances to

overcome dismissal with prejudice. In his certification in opposition to the

dismissal, counsel outlined medical issues he had been dealing with over the

course of the litigation but did not explain how these medical issues hindered

his ability to respond to the discovery requests. Counsel provided no

documentation detailing the medical work done or the recovery required.

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 We conclude the trial court did not abuse its discretion by finding plaintiff

failed to fulfill its discovery obligations. After the complaint was dismissed

without prejudice, plaintiff asserts it sent fully responsive discovery to

defendant. However, the most recent documents provided were the same partial

set already provided twice before in the litigation. And although plaintiff

offered some good faith answers to many of the interrogatories, others remained

deficient.

Finally, plaintiff argues that the trial court did not "meticulously follow[]

the mandates of Rule 4:23-5" by failing to hear oral argument before dismissing

the complaint with prejudice. Under Rule 4:23-5(a)(2), after sixty days from

the date of an order to dismiss without prejudice, a 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."

A full hearing is not always required, all that is necessary is for the non-

moving party to be aware of the pending motion to dismiss. Thabo, 452 N.J.

Super. at 368-69, 370-71. Here, the omission of oral argument does not warrant

reversal. Plaintiff clearly had notice of the pending motion to dismiss with

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prejudice since he filed a response in opposition of the motion. Since

extraordinary circumstances were not demonstrated, responsive discovery was

never produced and the non-delinquent party followed all the dictates of the

Rules, a procedural issue such as deciding not to hear arguments for the motion

to dismiss was within the sound discretion of the court.

Affirmed.

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