NOT FOR PUBLICATION WITHOUT THE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-2260-15T1
JOHN P. MCGOVERN,
Plaintiff-Respondent,
v.
CITY OF ORANGE TOWNSHIP
and DWAYNE WARREN,
Defendants-Appellants,
and
WILLIS EDWARDS, III,
Defendant.
____________________________________________
Argued July 6, 2017 – Decided July 21, 2017
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-1596-
14.
Christopher K. Harriott argued the cause for
appellants (Florio Kenny Raval, L.L.P.,
attorneys; Mr. Harriott, of counsel and on the
briefs).
Ronald J. Ricci argued the cause for
respondent (Ricci, Fava & Bagley, L.L.C.,
attorneys; Mr. Ricci, of counsel and on the
brief; Marisa Dominguez, on the brief).
PER CURIAM
Defendants City of Orange Township (City) and Dwayne Warren
(Warren) appeal from an order entered by the Law Division on
January 7, 2016, which determined that the City terminated
plaintiff John P. McGovern in violation of the New Jersey
Conscientious Protection Act (CEPA), N.J.S.A. 34:19-1 to -14;
ordered plaintiff's reinstatement to his position; awarded
plaintiff damages, back pay, attorney's fees and costs; and
required the City to make pension contributions on plaintiff's
behalf from the date of his termination to the date of his
reinstatement. We affirm.
I.
In March 2014, plaintiff, a former attorney in the City's Law
Department, filed a complaint in the trial court against defendants
and Willis Edwards, III (Edwards).1 According to the complaint, in
the time relevant to the complaint, Warren was the City's Mayor,
and Edwards was the City's Business Administrator. The City
employed plaintiff as an Assistant City Attorney.
Plaintiff alleged that the City's Clerk had been on medical
leave following an automobile accident, and the City paid all of
1
In July 2015, plaintiff dismissed his claims against Edwards.
Therefore, in this opinion, we refer to the City and Warren as
defendants.
2 A-2260-15T1
the Clerk's medical bills and temporary disability benefits
because it was "a workers' compensation matter." Plaintiff claimed
Warren and Edwards wanted to "transition" the Clerk back to work
on a full-time basis. The Clerk allegedly had obtained a settlement
of his lawsuit against a third-party, and owed the City about
$100,000, which was secured by a workers' compensation lien.
Plaintiff claimed Edwards told him to waive the lien so that
the Clerk could keep all the money he received in the settlement
of his lawsuit. Plaintiff alleged that he told Edwards that the
City Council and the Mayor would have to approve the waiver of the
lien, but Edwards insisted the Clerk should be allowed to keep all
of the settlement monies.
Plaintiff further alleged that he told his supervisors he was
concerned Edwards had asked him to do "something illegal and
contrary to [p]ublic [p]olicy." Plaintiff asserted that
thereafter, he ignored Edwards' request that he waive the lien,
but Edwards allegedly confronted him "in a menacing and hostile
manner" and demanded that he write a letter waiving the lien.
Plaintiff claimed that on January 31, 2012, he "nervously"
wrote the letter and waived the lien. The letter stated that he
was waiving the lien at Edwards' direction. Plaintiff asserted
that Edwards was "infuriated" because he stated that he waived the
lien because Edwards directed him to do so. On February 1, 2013,
3 A-2260-15T1
plaintiff was told he was going to be fired. Plaintiff asked Warren
if he was going to be terminated, and Warren allegedly told him
he was being "let go" because the City was making "budget cuts."
On February 5, 2013, plaintiff received a letter stating he was
terminated, effective February 1, 2013.
In his complaint, plaintiff asserted claims of wrongful
discharge, violation of CEPA, and breach of contract. He sought
reinstatement to his former position, compensatory and punitive
damages, attorney's fees and costs, and other relief.
In August 2014, plaintiff served a discovery request upon the
defendants. On January 9, 2015, the court granted plaintiff's
motion and struck defendants' answer without prejudice pursuant
to Rule 4:23-5(a)(1) because they had not responded to plaintiff's
discovery requests within the time required.
In March 2015, plaintiff filed a motion to strike defendants'
answer with prejudice pursuant to Rule 4:23-5(a)(2), and to
schedule a proof hearing on his claims. Defendants then filed a
motion to restore their answer. The judge later heard oral argument
on the motions.
At the argument, plaintiff's attorney noted that, in this
case, plaintiff was claiming he was fired after he complained to
his superiors that Edwards had ordered him to waive a significant
workers' compensation lien for a person who was his friend or
4 A-2260-15T1
associate. Plaintiff's attorney stated that defendants had taken
the position that plaintiff was an at-will employee, and they were
not required to provide any reasons for terminating his employment.
Plaintiff's attorney noted that there were other outstanding
discovery requests.
Defendants' attorney responded by stating that plaintiff was
fired because a new administration had taken office, and the new
Mayor had the power and authority to hire and fire the City's
attorneys. The judge stated that, if that was the City's reason
for firing plaintiff, it should put it in writing. Plaintiff's
attorney consented to restoring defendants' answer, but indicated
that his consent was conditioned upon defendants providing a
written statement of the reasons plaintiff was fired, as well as
responses to plaintiff's other outstanding discovery requests.
On May 29, 2015, the judge entered an order, which denied
plaintiff's motion to strike defendants' answer with prejudice.
The judge also entered an order dated May 29, 2015, which vacated
the order striking defendants' answer, restored the answer,
extended the time for discovery, and required defendants to respond
to plaintiff's outstanding discovery requests within ten days
after the order.
It appears that on June 4, 2015, defendants provided answers
to interrogatories. Nevertheless, plaintiff's attorney wrote to
5 A-2260-15T1
the court on July 30, 2015, and asserted that defendants had not
fully complied with the court's order of May 29, 2015. The judge
conducted a case management conference on August 26, 2015, and
entered an order dated September 8, 2015, extending the time for
discovery until November 30, 2015. The order identified the
discovery to be completed and the dates for completion.
On September 28, 2015, plaintiff again filed a motion to
strike defendants' answer with prejudice. In a certification
submitted in support of the motion, plaintiff's attorney stated
that defendants had not complied with the court's September 8,
2015 order. Defendants did not oppose the motion. On October 23,
2015, the judge entered an order striking the defendants' answer
with prejudice. The judge scheduled a proof hearing for December
1, 2015.
On November 25, 2015, defendants filed a motion to vacate the
order striking their answer and extend the time for discovery. In
a supporting certification, counsel for defendants stated that
defendants had produced one witness for a deposition, but other
depositions had not been scheduled because he had been involved
in a federal court matter. Plaintiff opposed the motion.
On December 8, 2015, the judge conducted a proof hearing, and
defendants were represented by counsel. The judge denied
defendants' request to adjourn the proof hearing pending a decision
6 A-2260-15T1
on defendants' motion to restore their answer. At the proof
hearing, plaintiff testified and the court permitted defendants'
attorney to conduct limited cross-examination. The judge then
placed an oral decision on the record. The judge found that the
City had terminated plaintiff in violation of CEPA for
whistleblowing activity.
The judge noted that plaintiff had objected to "pressure"
from Edwards to compromise a workers' compensation lien, which
plaintiff believed was a violation of the City's ordinance. The
judge pointed out that he had ordered defendants to provide a
written statement of the reasons plaintiff was fired, and they had
not done so. The judge found that plaintiff should be restored to
his position and awarded back pay of $136,048.96.
The judge also awarded plaintiff compensatory damages of
$50,000 for the embarrassment and anxiety plaintiff suffered as a
result of his termination. In addition, the judge determined that
plaintiff was entitled to lost benefits, specifically, the pension
contributions the City should have made for plaintiff from the
date he was terminated until his reinstatement. The judge also
determined that plaintiff was entitled to an award of attorney's
fees and costs.
Thereafter, defendants filed a supplemental certification
with the court, stating that the court should have adjourned the
7 A-2260-15T1
proof hearing. Counsel asserted that the court's prior order
striking defendants' answer did not comply with Rule 4:23-2 or
Rule 4:23-5. Counsel stated that any failure to provide discovery
was not intentional. He also stated the City was not required to
provide any reason for the termination of an at-will employee, but
defendants had provided those reasons to plaintiff verbally and
by letter.
On December 18, 2015, the judge heard oral argument on
defendants' motion to vacate the order striking their answer and
to restore their defense. The judge placed an oral decision on the
record. The judge observed that the case had "a very long and
extremely tortured procedural history." The judge found that
defendants' attorney had "consistently ignored" plaintiff's
discovery requests, forcing plaintiff to file numerous motions.
The judge pointed out that initially the court had suppressed
defendants' answer without prejudice for failure to provide
discovery, and plaintiff's attorney had consented to restoring the
answer on the condition that defendants provide a written statement
as to reasons the City fired plaintiff. The judge rejected
defendants' assertion that plaintiff was not prejudiced by their
failure to provide the reasons plaintiff was fired.
The judge added that defendants' attorney continued to fail
to comply with the court's discovery orders, even though counsel
8 A-2260-15T1
told the judge and plaintiff's attorney "that he would provide
this information and he would get it to him quickly." The judge
stated that although the court had given defendants many
opportunities to comply, they did not do so. Finally, plaintiff
filed a motion to strike defendants' answer with prejudice, which
was unopposed. The motion was granted.
The judge found that defendants had engaged in a pattern of
discovery violations, which included defendants' failure to comply
with the court's orders. The judge stated that defendants' attorney
"[h]as shown a complete lack of respect for [the] [court's] orders
and the discovery rules."
The judge determined that the order entered on October 23,
2015, striking defendants' answer with prejudice was appropriate
and there was no basis to vacate that order. The judge also stated
that plaintiff was entitled to supplemental attorney's fees
because plaintiff's attorney had been forced to respond to the
motion.
The judge entered an order dated January 7, 2016, which
awarded plaintiff back pay in the amount of $136,048.96, with pre-
judgment interest of $6511.57, totaling $142,560.53; awarded
plaintiff compensatory damages of $50,000; reinstated plaintiff
to his position as Assistant City Attorney; required the City to
pay pension contributions for plaintiff from February 1, 2013,
9 A-2260-15T1
until the date of his reinstatement; and directed defendants to
pay plaintiff attorney's fees and costs totaling $37,354. The
order stayed plaintiff's reinstatement pending any appeal
defendants may take.
Thereafter, defendants filed a notice of appeal. On May 13,
2015, we granted defendants' motion to stay the monetary judgment
entered against them pending disposition of the appeal.
II.
On appeal, defendants argue that the trial court erred by
striking their answer with prejudice, entering the default
judgment against them, and refusing to vacate the same. Defendants
contend their attorney's failure to comply with the court's orders
was not deliberate, and less drastic sanctions were available to
address the discovery violations.
Rule 4:23-2(b) authorizes the trial court to impose sanctions
for failing to comply with a court order "to provide or permit
discovery." Among other sanctions, the court may enter "[a]n order
striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof with or without prejudice, or
rendering a judgment by default against the disobedient party."
R. 4:23-2(b)(3).
10 A-2260-15T1
The ultimate sanction of dismissal should be imposed "only
sparingly." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J.
499, 514 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 253
(1982)). "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." Ibid. (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, supra,
88 N.J. at 253).
A court may strike a pleading with prejudice in order to
penalize those whose conduct warrants such relief, and to deter
others from violating the discovery rules. Id. at 514-15 (citing
Zaccardi v. Becker, 162 N.J. Super. 329, 332 (App. Div.), certif.
denied, 79 N.J. 464 (1978)). We review an order striking a pleading
for a discovery violation for abuse of discretion. Id. at 517.
Notwithstanding defendants' arguments to the contrary, we are
convinced the motion judge did not mistakenly exercise its
discretion by striking defendants' answer with prejudice. The
11 A-2260-15T1
record supports the court's finding that defendants' counsel
"consistently ignored" the court's discovery orders, despite
providing assurances that defendants would comply with the
discovery requests. Moreover, the discovery sought related
directly to the foundation of plaintiff's cause of action under
CEPA.
To establish a cause of action under CEPA, the plaintiff must
demonstrate that:
(1) he or she reasonably believed that his or
her employer's conduct was violating either a
law, rule, or regulation promulgated pursuant
to law, or a clear mandate of public policy;
(2) he or she performed a "whistle-blowing"
activity described in N.J.S.A. 34:19-3[(c)];
(3) an adverse employment action was taken
against him or her; and (4) a causal
connection exists between the whistle-blowing
activity and the adverse employment action.
[Dzwonar v. McDevitt, 177 N.J. 451, 462
(2003).]
If the plaintiff presents a prima facie case under CEPA, "the
defendant must then come forward to advance a legitimate reason
for discharging [the] plaintiff." Massarano v. N.J. Transit, 400
N.J. Super. 474, 492 (App. Div. 2008) (quoting Zappasodi v. N.J.
Dept. of Corrs., 335 N.J. Super. 83, 89 (App. Div. 2000)).
Plaintiff is required to demonstrate that the reasons proffered
by the employer are not worthy of belief. Kolb v. Burns, 320 N.J.
Super. 467, 479 (App. Div. 1999).
12 A-2260-15T1
As we noted previously, defendants claimed that because
plaintiff was an at-will employee, they were not obligated to
provide any reason for his discharge. However, where the plaintiff
asserts a claim of wrongful termination under CEPA, and the
plaintiff presents a prima facie case under CEPA, the defendant
has the burden of coming forward with evidence showing that it
discharged the plaintiff for a legitimate reason.
Here, plaintiff properly sought a statement of the reasons
that the City would advance as justification for his termination.
The record shows that defendants consistently refused to comply
with the court's orders, which required the City to set forth in
writing the reasons for plaintiff's discharge. Furthermore,
defendants failed to provide other discovery, which also was
addressed to the core of plaintiff's CEPA claim. Thus, plaintiff
was prejudiced by defendants' failure to comply with the court's
discovery orders.
We note that in December 2015, when defendants sought to
restore their answer, their attorney asserted that in defendants'
answers to interrogatories, defendants had asserted they had no
duty to provide a reason for plaintiff's termination. Counsel also
stated that Dan Smith, the City's attorney, had written a letter
to plaintiff's attorney, stating that when a new Mayor takes
office, it is expected that there may be a change of personnel.
13 A-2260-15T1
Plaintiff's attorney said he did not receive the letter. In any
event, neither the answer to the interrogatories or Smith's letter
provided what plaintiff had been seeking, specifically, a
statement of the reasons plaintiff was fired.
Defendants argue, however, that rather than strike their
answer, the trial court should have imposed lesser sanctions. This
argument fails because the trial court did, in fact, employ a
series of lesser sanctions before ultimately deciding to strike
defendants' answer with prejudice. As we have explained, the court
first struck defendants' answer without prejudice, but defendants
did not thereafter provide the discovery requested.
The court later denied plaintiff's motion to strike the answer
with prejudice, and entered an order compelling defendants to
provide discovery. Defendants did not comply with that order. The
court conducted a case management conference, and entered an order
specifying the discovery that remained, and the time in which
discovery must be completed. Defendants did not comply with the
order.
Defendants nevertheless contend that the trial court could
have ordered depositions of persons with knowledge of the reasons
for plaintiff's termination; however, the court had entered the
order of September 8, 2015, which mandated that all depositions
be noticed and completed within forty-five days of that order.
14 A-2260-15T1
Defendants produced only one witness for a deposition within the
time required. That witness was a secretary who did not have any
relevant knowledge of the reasons for plaintiff's termination.
Defendants further argue that the court could have entered
an order stating that defendants had not articulated a legitimate
reason for plaintiff's termination, and prohibited defendants from
presenting any evidence on that issue. However, such an order
would have been tantamount to granting partial summary judgment
to plaintiff on his CEPA claim, leaving only the issue of damages
for trial. This is essentially what happened here.
Defendants also contend the court could have required their
prior attorney to pay plaintiff's attorney's fees and other
expenses caused by their failure to comply with the court's
discovery orders. Even if such an order had been entered, plaintiff
still would not have had the discovery he sought, which went to
the heart of his CEPA claim. This was not a lesser sanction that
would have addressed defendants' failure to comply with the court's
discovery orders.
III.
Next, defendants argue that the trial court erred by failing
to vacate the order striking their answer with prejudice. They
contend such relief should have been granted pursuant to Rule
4:50-1. We disagree.
15 A-2260-15T1
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." US 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 "[departure] from established policies," or rests
"on an impermissible basis." Ibid. (quoting Iliadis v. Wal-Mart
Stores, Inc., 191 N.J. 88, 123 (2007)).
Rule 4:50-1 provides that the court may relieve a party from
a judgment for the following reasons:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under [Rule] 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
Defendants argue that Rule 4:50-1(f) applies in this case.
However, relief under this subsection of the rule is only available
when "truly exceptional circumstances are present." Guillaume,
16 A-2260-15T1
supra, 209 N.J. at 484 (quoting Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 286 (1994)). "The rule is limited to
'situations in which, were it not applied, a grave injustice would
occur.'" Ibid. (quoting Hous. Auth. of Morristown, supra, 135 N.J.
at 289).
Defendants argue that the conduct of their prior counsel in
failing to comply with the court's orders presents exceptional
circumstances that warrant relief under the rule. Defendants
contend their former attorney failed to keep them reasonably
informed of the status of the matter, and did not handle the matter
in accordance with accepted standards of care. They assert that
the failure to provide discovery was not due to any fault on their
part.
Defendants have not, however, shown that the trial court's
refusal to grant relief under Rule 4:50-1(f) was a mistaken
exercise of discretion. Defendants have not presented an affidavit
or certification which establishes that their attorney failed to
keep them reasonably informed of the status of the matter, or that
the failure to comply with the court's prior discovery orders was
entirely the fault of their attorney. Defendants also have not
refuted plaintiff's claim that all parties were well aware of what
was required, but defendants nevertheless deliberately refused to
comply with the court's discovery orders.
17 A-2260-15T1
Simply put, defendants have not shown "truly exceptional
circumstances," which are required for relief under Rule 4:50-
1(f). Guillaume, supra, 209 N.J. at 484 (quoting Hous. Auth. of
Morristown, supra, 135 N.J. at 286). They have not shown that the
court's order represents a grave injustice. Ibid. (citing Hous.
Auth. of Morristown, supra, 135 N.J. at 289).
Affirmed.
18 A-2260-15T1
JOHN P. MCGOVERN VS. CITY OF ORANGEÂ (L-1596-14, ESSEX COUNTY AND STATEWIDE)
Combined Opinion