NOT FOR PUBLICATION WITHOUT THE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-4540-16T4
JI SUNG KIM,
Plaintiff-Appellant,
v.
PAUL P. KOBLISKA,
Defendant-Respondent.
_____________________________
Submitted June 6, 2018 – Decided July 10, 2018
Before Judges Currier and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-3773-
15.
Andrew Park, PC, attorneys for appellant
(David M. Wasserman, on the brief).
Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys for respondent (Aron Mandel, of
counsel and on the brief).
PER CURIAM
Plaintiff Ji Sung Kim appeals from two May 12, 2017 orders:
(1) dismissing the complaint with prejudice for failure to provide
discovery and (2) denying his motion to reinstate the complaint
to the active trial list. We affirm.
We glean the following facts from the record. Plaintiff
sustained injuries in a motor vehicle accident occurring on April
15, 2015, when the vehicle he was driving collided with a vehicle
driven by defendant Paul P. Kobliska. Plaintiff initiated this
action on November 4, 2015.
Defendant filed an answer, separate defenses, and a demand
for discovery on December 9, 2015. The demand for discovery
included standard form interrogatories, supplemental
interrogatories, and a notice to produce, which demanded plaintiff
produce executed authorizations to obtain his medical and
prescription records. Despite multiple requests from defense
counsel, plaintiff did not provide any discovery responses,
resulting in defendant filing a series of motions to enforce
plaintiff's discovery obligations.
Defendant moved to dismiss the complaint without prejudice
for failing to answer interrogatories and produce documents. While
the motion was pending, plaintiff produced uncertified discovery
responses. In response to the demand for pharmacy records,
plaintiff objected, claiming the request was overly broad.
Defendant advised the court, in addition to not being certified,
plaintiff's discovery responses were not based upon personal
2 A-4540-16T4
knowledge. On September 2, 2016, the trial court denied the motion
to dismiss but ordered plaintiff to provide certified answers to
the interrogatories within ten days. Plaintiff did not comply
with the order.
Defendant then moved to dismiss the complaint for failure to
provide certified answers to interrogatories in violation of the
prior order. While the motion was pending, plaintiff produced
additional discovery, which, again, was not certified. On October
18, 2016, the trial court denied defendant's motion to dismiss
because defendant did not timely serve the prior order on
plaintiff. The court ordered plaintiff to certify all discovery
by October 31, 2016.
On November 15, 2016, defendant demanded more specific
answers to interrogatories and sought clarification of plaintiff's
objection to producing his pharmacy records; defendant asked
plaintiff to clarify whether it was the subject matter
(prescription records) or the time period (past ten years) to
which plaintiff objected. In the event the objection was based
on the time period of the records sought, defendant requested
plaintiff authorize the release of the pharmacy records he found
unobjectionable. Plaintiff responded by indicating he would
provide the more specific information during his deposition.
3 A-4540-16T4
On December 2, 2016, the trial court extended discovery to
July 3, 2017, and ordered plaintiff to provide more specific and
complete answers to interrogatories and document requests by
December 15, 2016. Plaintiff did not comply with the order.
On January 31, 2017, after receiving no additional discovery
from plaintiff, defendant moved, for a second time, to dismiss the
complaint with prejudice pursuant to Rule 4:23-2(b)(3) for failure
to comply with the December 2, 2016 order. On February 17, 2017,
the trial court dismissed the complaint without prejudice.
While the motion was pending, plaintiff supplied additional
uncertified responses. As part of the responses, plaintiff's
counsel stated: "Upon information and belief, [p]laintiff has not
had any prescriptions for the last 10 years."
However, on March 6, 2017, plaintiff supplied additional
discovery responses, in which he disclosed, for the first time,
he had received prescription medication from a Costco Pharmacy.
On the same day, plaintiff moved to reinstate the complaint.
During oral argument, plaintiff's counsel represented she would
supply the remaining discovery, including the authorization for
the Costco Pharmacy records, within one week. Plaintiff failed
to do so. As a result, on April 13, 2017, the trial court denied
plaintiff's motion to reinstate the complaint without prejudice.
The court noted plaintiff filed his motion before he had complied
4 A-4540-16T4
with discovery demands and his discovery deficiencies had resulted
in three motions to dismiss.
Meanwhile, on April 11, 2017, some 488 days after the
discovery requests were propounded, plaintiff finally provided
certified answers to the interrogatories and supplemental
interrogatories and executed authorizations for numerous medical
providers and an employer. However, the authorizations were, in
part, improperly prepared. The authorization for KSK Line
authorized the release of medical records rather than employment
records. The authorization for Affinity Radiology authorized the
release of employment records rather than medical records.
Plaintiff did not provide an executed authorization for the Costco
Pharmacy records. As a courtesy, defendant supplied corrected
authorizations to plaintiff's counsel.
Consequently, plaintiff had still not provided fully
responsive discovery, having failed to provide correct
authorizations for KSK Line, Affinity Radiology, and Costco
Pharmacy. We further note these providers and employer had not
been disclosed in plaintiff's initial discovery responses.
Defendant moved to dismiss the complaint with prejudice for failure
to provide discovery within sixty days of the order dismissing the
complaint without prejudice. Plaintiff opposed the motion and
cross-moved to reinstate the complaint and extend discovery.
5 A-4540-16T4
Contrary to plaintiff's counsel's certification, fully responsive
discovery responses were not attached. Plaintiff had still not
provided an executed authorization for Costco Pharmacy.
On the return date, two attorneys appeared for oral argument
for plaintiff. The motion judge noted plaintiff's attorneys argued
inconsistent positions. One argued the Costco Pharmacy
authorization had been sent to defense counsel. The other argued
plaintiff could not provide the executed authorization because the
wrong form had been provided. Notably, the executed authorization
for Costco Pharmacy records is not included in the record.
The defense maintained its position that plaintiff had still
not provided the executed authorization for Costco Pharmacy.
Defense counsel explained, although he received a transmittal
letter, the authorization was not enclosed. Defense counsel noted
the executed authorization was supposed to be attached as Exhibit
C to the certification submitted by plaintiff's counsel, but it
was not attached. When confronted with this discrepancy by the
motion judge, plaintiff's counsel stated the authorization was not
attached because of a computer outage in their office on the day
the papers had to be sent out. When the judge asked if plaintiff's
counsel had a copy with them, counsel admitted they did not.
Defense counsel also indicated plaintiff had not disclosed
six or seven treating physicians named in the Personal Injury
6 A-4540-16T4
Protection benefit records. Additionally, plaintiff's answers to
interrogatories stated he was unemployed, when, in fact, he was
employed by KSK Line from May 2015 to October 2016 and by Shin Ju
Line starting in October 2016.
The motion judge concluded plaintiff had not provided the
executed Costco Pharmacy authorization to defense counsel, finding
plaintiff's counsel had stretched the court's "credulity to the
limits." She stated plaintiff's counsel had submitted "a lot of
documents and statements" that the court could not rely on,
referring to a prior certification of one person that had been
incorrectly executed by a different person and two motions to
reinstate the complaint despite not complying with discovery
requests. The judge concluded she could not rely on the
representations made by plaintiff's counsel in light of their
inconsistent arguments. In contrast, the judge found defense
counsel's statements credible.
The trial court dismissed the complaint with prejudice and
denied plaintiff's cross-motion, noting plaintiff had failed to
provide the delinquent discovery prior to filing the motion to
reinstate the complaint even though ample time was given to comply.
The court found the motion to reinstate did not comply with the
rules since discovery was still not complete.
7 A-4540-16T4
Expressing frustration with plaintiff's repeated failures to
provide certified answers to discovery and comply with court
orders, the court stated it had no confidence that the situation
would not repeat itself even if it denied the motion to dismiss
with prejudice, granted the motion to reinstate, and ordered
plaintiff to pay sanctions. Instead, the court believed it would
"be in the same situation" again, noting it "has just been a
disaster the way this case has been conducted," causing defendant
to suffer an "injustice." Plaintiff did not seek reconsideration.
This appeal followed.
On appeal, plaintiff argues the trial court abused its
discretion in dismissing the complaint with prejudice rather than
compelling plaintiff to produce the remaining pharmaceutical
records authorization. Plaintiff contends defendant's motion
should have been treated as a motion to compel discovery rather
than a motion to dismiss with prejudice. Relying on an unpublished
opinion, plaintiff argues Rule 4:23-5 only permits dismissal with
prejudice for failing to provide the specific discovery leading
to the prior dismissal without prejudice.1 Plaintiff asserts the
earlier dismissal without prejudice was made in regard to a failure
1
Unpublished opinions do not constitute precedent, are not
binding upon any court, Rule 1:36-3, "and cannot reliably be
considered part of our common law,” Trinity Cemetery v. Wall Tp.,
170 N.J. 39, 48 (2001) (Verniero, J., concurring).
8 A-4540-16T4
to answer interrogatories, whereas the motion to dismiss with
prejudice pertained to a failure to provide certain
authorizations.
We review the dismissal of a complaint with prejudice for
discovery misconduct for abuse of discretion, "a standard that
cautions appellate courts not to interfere unless an injustice
appears to have been done." Abtrax Pharms., Inc. v. Elkins-Sinn,
Inc., 139 N.J. 499, 517 (1995) (citations omitted). We find no
such abuse of discretion in this matter.
The trial court's findings are amply supported by the record.
Plaintiff repeatedly failed to provide basic discovery to
defendant despite multiple extensions and court orders.
Plaintiff's conduct caused a "months-long discovery impasse,"
substantially delaying discovery and necessitating a series of
discovery enforcement motions, causing defendant to incur
attorney's fees and costs, and the trial court to expend judicial
resources.
Plaintiff offers no explanation for the protracted failure
to provide responsive discovery and to comply with discovery rules
and court orders. He does not claim he was delayed in providing
discovery by illness, disability, or inaccessibility to the
information sought.
9 A-4540-16T4
Particularly troubling is the basic nature of the discovery
at issue. This is a simple personal injury action arising out of
a motor vehicle accident. Standard form interrogatories and
authorizations to obtain records from medical providers,
pharmacies, and employers do not present difficult discovery
obligations. Here, there is no suggestion that obtaining
plaintiff's signature on the authorizations and the information
necessary to answer the interrogatories was thwarted by
circumstances beyond plaintiff's control.
Our court rules and case law do not permit a party to
flippantly ignore their discovery obligations and court orders.
Rule 4:23-5 provides for a two-step sanction process if a demand
for discovery pursuant to Rule 4:17 or Rule 4:18 is not complied
with. St. James AME Dev. Corp. v. City of Jersey City, 403 N.J.
Super. 480, 484 (App. Div. 2008); Pressler & Verniero, Current
N.J. Court Rules, cmt. 1.1 on R. 4:23-5 (2018). The first step
is dismissal without prejudice under Rule 4:23-5(a)(1). The second
step is dismissal with prejudice under Rule 4:23-5(a)(2).
If 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 . . . move on notice for an
order of dismissal . . . with prejudice. . .
. The motion to dismiss or suppress with
prejudice shall be granted unless a motion to
vacate the previously entered order of
10 A-4540-16T4
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).]
Rule 4:23-1 authorizes a trial court to enter orders
compelling discovery of authorizations for medical and employment
records. Among the remedies the trial court may impose is an
order "dismissing the action or proceeding or any part thereof
with or without prejudice." R. 4:23-2(b)(3).
Additionally, "[a] trial court has inherent discretionary
power to impose sanctions for failure to make discovery, subject
only to the requirement that they be just and reasonable in the
circumstances." Abtrax Pharms., 139 N.J. at 513 (quoting Calabrese
v. Trenton State Coll., 162 N.J. Super. 145, 151-52 (App. Div.
1978), aff'd, 82 N.J. 321 (1980)); see also Lang v. Morgan's Home
Equip. Corp., 6 N.J. 333, 338 (1951). Applying these standards,
we conclude the motion judge did not err by dismissing the
complaint with prejudice.
Plaintiff did not comply with the December 2, 2016 order
compelling him to provide more specific and complete answers to
interrogatories and document requests by December 15, 2016. A
February 17, 2017 order dismissed the complaint without prejudice
for failure to comply with the December 2, 2016 order. Plaintiff
11 A-4540-16T4
did not move to reinstate the complaint within sixty days, instead
waiting until May 4, 2017, to file his cross-motion. By not
supplying an executed authorization for the Costco Pharmacy
records, plaintiff failed to produce "fully responsive discovery,"
as required by Rule 4:23-5(a)(2). See Fik-Rymarkiewicz v. Univ.
of Med. and Dentistry of N.J., 430 N.J. Super. 469, 482 (App. Div.
2013). Accordingly, the court did not err by denying
reinstatement.
Plaintiff did not demonstrate "exceptional circumstances" to
allow for reinstatement of his complaint. Ibid. To the contrary,
no excuse at all was offered. Accordingly, dismissal with
prejudice was appropriate. See Pressler & Verniero, cmt. 1.3 on
R. 4:23-5 ("Otherwise, the motion for dismissal or suppression
with prejudice is required to be granted unless fully responsive
answers have been served by the time of the return date or, as
formerly, extraordinary circumstances are demonstrated.").
We are satisfied that, throughout the course of pretrial
discovery, "plaintiff demonstrated contumacious behavior, ignored
court orders, and obstructed discovery of information that is
directly relevant" to his personal injury claim. Fik-
Rymarkiewicz, 430 N.J. Super. at 471. Considering the totality
of the circumstances, the sanctions imposed were not unjust or
12 A-4540-16T4
unreasonable. We conclude the motion judge did not abuse her
discretion and affirm the dismissal with prejudice.
Affirmed.
13 A-4540-16T4
JI SUNG KIM VS. PAUL P. KOBLISKA (L-3773-15, UNION COUNTY AND STATEWIDE)
Combined Opinion