AZIZ M. THABO VS. Z TRANSPORTATION(L-3296-15, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0034-16T1

AZIZ M. THABO,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
November 17, 2017
v.
APPELLATE DIVISION

Z TRANSPORTATION,

Defendant-Respondent.
___________________________________

Submitted September 27, 2017 - Decided November 17, 2017

Before Judges Fuentes, Manahan and Suter.

On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket
No. L-3296-15.

Anthony J. Van Zwaren, attorney for
appellant.

Sammarro & Zalarick, PA, attorneys for
respondent (Stephen M. Sammarro, on the
brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

In this breach of contract case, the Law Division judge

dismissed with prejudice plaintiff's complaint by imposing the

ultimate discovery sanction provided in Rule 4:23-5. We now

reverse and remand this matter for further proceedings because
the party who filed this motion and the Law Division judge who

imposed this sanction failed to follow the procedural safeguards

codified in Rule 4:23-5.

The record shows defendant did not provide the motion judge

with competent evidence showing it complied with the strict

notice requirements of Rule 4:23-5. Even more egregious,

defendant received the outstanding discovery which formed the

basis of the sanction a month before the judge dismissed

plaintiff's complaint with prejudice. This wholesale disregard

for the due process protections embodied in Rule 4:23-5 can

occur only when the trial court fails to perform its basic

gatekeeping function.

We derive the following facts from the record developed by

the parties at this stage of the litigation. We emphasize,

however, that the veracity of the factual claims that form the

basis of this cause of action are not at issue here. We do not

express any opinion about the merits of this cause of action.

I

On July 10, 2015, plaintiff Aziz M. Thabo contacted Igor

Nikolovski, a representative of defendant Z Transportation, in

response to an advertisement defendant had placed in a

publication called "Truck Paper," offering for sale a 2006

Freightliner C1124ST – Century 112 truck for $19,600. According

2 A-0034-16T1
to plaintiff, he made clear to Nikolovski that he was only

looking to buy a Department of Transportation (DOT) compliant

truck. Defendant allegedly assured plaintiff that the 2006

Freightliner C1124ST – Century 112 truck met this requirement.

In fact, defendant described the truck in its advertisement as

being "DOT Ready," which plaintiff understood to mean the truck

would pass inspection and comply with the regulations of the

Department of Transportation and the Federal Motor Carrier

Safety Administration.1

Plaintiff claims that when he took the truck for a test

drive, he immediately noticed it was not DOT compliant.

Nikolovski acknowledged the deficiency and agreed to make the

truck DOT ready, provided that plaintiff would commit to

purchasing the truck. Plaintiff agreed and gave defendant a

$1000 deposit as an indication of his good faith commitment to

buy the truck. Defendant alleges it paid for the replacement

and repair of certain parts to ensure the truck was DOT

compliant. Defendant further alleges it told plaintiff that the

necessary repairs had been done and the truck was ready for pick

up on August 15, 2015. Plaintiff sent defendant a check in the

1
See 49 C.F.R. 396.1 to -396.25.

3 A-0034-16T1
amount of $18,600, representing the balance of the purchase

price.

Before plaintiff took possession of the truck, defendant

informed him that the truck displayed an error code message on

the dashboard related to the air conditioning. Defendant

nevertheless assured plaintiff that the truck was DOT certified

and provided plaintiff with a document denoted "Vehicle History

Record." The document contains a checklist of all the items

inspected and certified as "OK." There is a blank space on the

right corner of the document with the words "Inspector's Name

(Print or Type)," which was left blank. Immediately below this

blank box is another space that states: "This inspector meets

the Qualification Requirements in Section 396.19." A box with

the word "YES" was marked with an "X."

Based on the error code message in the truck's dashboard,

plaintiff refused to take possession of the vehicle and asked

defendant to refund him the $19,600. Plaintiff claims he

contacted defendant several times thereafter demanding the

refund of his money, to no avail. Defendant claims it contacted

plaintiff several times to determine when he planned to pick up

the truck, but did not get an answer. Defendant also claims it

has incurred storage charges due to plaintiff's failure to take

possession of the truck.

4 A-0034-16T1
 II

On September 23, 2015, plaintiff filed a pro se complaint

against defendant in the Law Division. At this time, plaintiff

resided in the Township of Darby, Pennsylvania.2 On November 23,

2015, defendant filed its answer alleging several affirmative

defenses and a counterclaim to recover storage charges allegedly

incurred in safekeeping the truck after it was sold to

plaintiff. Defendant claims the truck was DOT compliant and

seeks to recover the storage charges it had incurred as a result

of plaintiff's alleged breach of the sales contract.

The initial discovery end date (DED) in this matter was

April 21, 2016. Plaintiff served defendant with a notice to

produce documents by certified mail on December 4, 2015, and

December 23, 2015. Defendant served plaintiff with

interrogatories and a notice to produce documents on January 4,

2016. Plaintiff filed a motion to compel defendant to respond

to the notice to produce on February 3, 2016. During this time,

plaintiff still resided in the Township of Darby, Pennsylvania.

On February 10, 2016, defendant's attorney filed a motion

to dismiss plaintiff's complaint for failure to provide answers

to the interrogatories and for failure to provide responses to

2
To protect his privacy, we have not described plaintiff’s
specific address.

5 A-0034-16T1
the notice to produce. The motion documents did not specify

whether the dismissal defendant sought as a sanction against

plaintiff was with or without prejudice. In the certification

submitted in support of the motion, defendant's attorney also

failed to include a statement indicating that defendant, as the

moving party, was not in default of any discovery obligations

owed to plaintiff, as required by Rule 4:23-5(a)(1).

Although defendant's attorney included a statement that he

had "orally conferred, or has made a good faith effort to orally

confer with the opposing party to no avail," he did not

"specifically describe[]" the type of "good faith" efforts he

made, as required by Rule 1:6-2(c). Finally, defendant’s

counsel's certification of mailing did not include a statement

under oath that plaintiff was served with a copy of the motion.

The only reference to plaintiff being served with this motion is

found in defense counsel's transmittal letter addressed to the

vicinage's "Civil Division Motion's Clerk." In this letter,

counsel merely states: "By copy of this letter, I am forwarding

a copy of this Notice of Motion to my adversaries." We infer

from the incongruous reference to "adversaries" in the plural,

despite plaintiff being the only adversary in the case, that

this was a form letter.

6 A-0034-16T1
 As this record makes clear, by the time defendant filed

this motion, the Law Division had two conflicting discovery

motions pending. On February 19, 2016, the Law Division judge

granted plaintiff's motion to compel defendant to respond to the

notice to produce documents. The judge found that "[d]espite

[p]laintiff’s good faith effort to resolve the outstanding

discovery, responses have not been received by [p]laintiff to

date." The judge ordered defendant to respond to the notice to

produce within fifteen days of the order. Pursuant to the

method of calculation codified in Rule 1:3-1,3 defendant's

documents were due on March 7, 2016. The order indicates that

plaintiff's motion was unopposed. At the time the judge entered

this order, there were seventy-one days left until the April 21,

2016 DED.

3
Under Rule 1:3-1:

In computing any period of time fixed by
rule or court order, the day of the act or
event from which the designated period
begins to run is not to be included. The
last day of the period so computed is to be
included, unless it is a Saturday, Sunday or
legal holiday, in which event the period
runs until the end of the next day which is
neither a Saturday, Sunday nor legal
holiday. In computing a period of time of
less than 7 days, Saturday, Sunday and legal
holidays shall be excluded.

7 A-0034-16T1
 On March 18, 2016, the same judge granted defendant's

motion to dismiss plaintiff's complaint for failure to provide

answers to interrogatories. As was the case when plaintiff

moved for discovery relief, the court's order indicates that

defendant's motion was unopposed. In the brief filed in this

appeal, defendant's attorney asserts that he personally

telephoned plaintiff after the court dismissed the complaint

without prejudice in an effort to secure plaintiff's voluntary

compliance. However, factual assertions made by an appellate

counsel that are not supported by a specific citation to the

record developed before the trial court and supported by a

specific citation to the appendix violate the rules of appellate

practice and will not be considered.4

The record before us contains a "Substitution of Counsel"

signed by plaintiff and his attorney on March 9, 2016.

Inexplicably, this notice was not filed with the Law Division

until April 25, 2016, four days after the expiration of the

April 21, 2016 DED. On June 2, 2016, defendant moved to dismiss

4
See Rule 2:6-4(a) describing the contents of a respondent’s
brief and its correlation to Rule 2:6-2(a)(5). See also Spinks
v. Twp. of Clinton, 402 N.J. Super. 465, 474 (App. Div. 2008),
certif. denied, 197 N.J. 476 (2009) (explaining that it is the
responsibility of the parties to refer this court to specific
parts of the record to support their argument.) "Lack of
familiarity with appellate court procedures is no excuse."
Miraph Enters., Inc. v. Bd. of Alco. Bev., Paterson, 150 N.J.
Super. 504, 508 (App. Div. 1977).

8 A-0034-16T1
plaintiff's complaint with prejudice pursuant to Rule 4:23-

5(a)(2) for failure to provide discovery.

Presumably unaware of plaintiff's counsel's appearance in

the case, defendant’s counsel's certification of mailing

reflects that the notice of motion and supporting documentation

were sent directly to plaintiff at his address in Darby,

Pennsylvania. Defendant's attorney submitted a certification in

support of the motion that included the following factual

representations:

2. The time for the plaintiff to answer
interrogatories and provide responses to the
notice to produce propounded have expired
and the plaintiff has not provided any of
the information requested. . .

3. Accordingly, on February 10, 2016, the
defendant filed a Motion to dismiss the
complaint of the plaintiff, Aziz M. Thabo
for failure to answer interrogatories and
answer Notice to Produce returnable on March
18, 2016. Said motion was granted on March
18, 2016[.]

4. Pursuant to [Rule] 4:23-5(a)(2), the
defendant now moves for dismissal of
plaintiff, Aziz Thabo’s complaint with
prejudice as the sixty (60) day grace period
to provide the overdue discovery has passed
and plaintiff has still failed to supply the
overdue discovery.

In a letter dated June 6, 2016, plaintiff's attorney sent

defendant's attorney: (1) a copy of the substitution of counsel

filed with the court; (2) plaintiff's answers to defendant's

9 A-0034-16T1
interrogatories and notice to produce; and (3) plaintiff's

interrogatories and a new notice to produce. In an order

entered on July 8, 2016 marked "unopposed," the motion judge

dismissed plaintiff's complaint with prejudice ostensibly

pursuant to Rule 4:23-5(a)(2) "for failure to provide answers to

interrogatories and responses to a notice to produce[.]"

In a letter dated July 18, 2016, defendant's attorney sent

plaintiff's attorney a copy of the trial court's order.

Defendant's attorney stated in the transmittal letter that the

order was "self-explanatory" and advised plaintiff's counsel to

be "guided accordingly." In the brief submitted in this appeal,

defendant's counsel does not offer any explanation for not

withdrawing the motion after he received the outstanding

discovery from plaintiff's attorney more than a month earlier.

On July 18, 2016, the same day he received defendant's

counsel's letter transmitting the court's order, plaintiff's

counsel filed a motion to restore the case to the active trial

calendar and permit plaintiff to file an answer to defendant's

counterclaim and "to continue discovery."5 Plaintiff submitted a

certification in support of the motion in which he averred that

since he filed his complaint pro se, he had moved to Folcroft,

5
Because the DED was April 21, 2016, we presume plaintiff’s
counsel was also seeking an extension of the initial discovery
period.

10 A-0034-16T1
Pennsylvania. Consequently, he did not receive the notice of

defendant's February 10, 2016 motion to dismiss his complaint

without prejudice.

Plaintiff emphasized: "If I had known of the defendant's

motion to dismiss while he was in violation of the order of

February 19, 2016, I certainly would have appeared." Plaintiff

also noted that defendant's attorney's certification stating

that plaintiff "had failed to respond to outstanding discovery"

was false because his attorney "had sent out all responses" on

June 6, 2016. Plaintiff pointed out that the court had found

defendant delinquent in its discovery obligation to plaintiff,

before defendant moved to dismiss plaintiff's complaint.

Despite these procedural irregularities, a different judge

denied plaintiff's motion without affording his attorney an

opportunity to present oral argument. In an order dated August

8, 2016, the judge wrote: "The applicant[ion] is denied. [The

previous] Judge . . . dismissed this matter with prejudice by

order July 8, 2016."

III

"[T]he standard of review for dismissal of a complaint with

prejudice for discovery misconduct is whether the trial court

abused its discretion[.]" Abtrax Pharm. v. Elkins-Sinn, Inc.,

139 N.J. 499, 517 (1995). The trial court is deemed to have

11 A-0034-16T1
abused its discretion when the "'decision [was] made without a

rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis.'" United States

v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex

County Prosecutor, 171 N.J. 561, 571 (2002)). A trial court's

exercise of discretion is "entitled to respectful review under

an abuse of discretion standard[.]" Serenity Contracting v.

Fort Lee, 306 N.J. Super. 151, 157 (App. Div. 1997).

Here, the flagrant disregard of the procedural requirements

of Rule 4:23-5 satisfies this standard of review. The decisions

made by the Law Division judges that resulted in the dismissal

of plaintiff's complaint with prejudice were made without a

rational explanation, inexplicably departed from the rule's

procedural requirements and constitute clear abuses of their

discretionary authority. Flagg, supra, 171 N.J. at 571. The

original motion judge who dismissed plaintiff's complaint

without prejudice abused her discretion because at the time she

entered this order, that same judge had previously found

defendant was delinquent in its discovery obligation to

plaintiff.

However, the motion judge is not exclusively responsible

for this oversight. Defendant's counsel violated the

requirements of Rule 4:23-5(a)(1) when he moved to dismiss

12 A-0034-16T1
plaintiff's complaint without disclosing to the court that his

client was in default of its discovery obligations. This

material omission by defendant's counsel indisputably

contributed to the judge's error and may have constituted a

violation of an attorney's "obligation of candor to each other

and to the judicial system, which includes a duty of disclosure

to the court and opposing counsel." McKenney v. Jersey City

Med. Ctr., 167 N.J. 359, 371 (2001). See also RPC 3.3(a)(5)

(prohibiting an attorney from knowingly failing "to disclose to

the tribunal a material fact knowing that the omission is

reasonably certain to mislead the tribunal[.]").6

Independent of defense counsel's conduct, the record shows

the motion judge failed to adhere to the procedural safeguards

codified in Rule 4:23-5. The rule imposes a duty on the motion

judge "to take action to obtain compliance with the requirements

of the rule." A & M Farm & Garden Ctr. v. Am. Sprinkler Mech.

6
However, it is beyond our role and authority as an intermediate
appellate court to make any determination concerning whether
defendant’s counsel committed an ethical violation. Our State
Constitution expressly provides the Supreme Court with the
“exclusive jurisdiction over the admission to the practice of
law and the discipline of persons admitted." N.J. Const. art.
VI, § 2, ¶ 3. Robertelli v. New Jersey Office of Atty. Ethics,
224 N.J. 470, 476 (2016). The Court "has both the authority and
obligation to oversee the discipline of attorneys." R.M. v.
Supreme Court of New Jersey, 185 N.J. 208, 213 (2005); see also
State v. Rush, 46 N.J. 399, 411 (1966).

13 A-0034-16T1
L.L.C., 423 N.J. Super. 528, 532 (App. Div. 2012). Rule 4:23-5

codified a two-step procedural paradigm that must be strictly

adhered to before the sanction of dismissal of a complaint with

prejudice for failing to answer interrogatories or provide other

discovery can be imposed. St. James AME Dev. Corp. v. City of

Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008). These

procedural requirements must be scrupulously followed and

technically complied with. Sullivan v. Coverings &

Installation, Inc., 403 N.J. Super. 86, 95 (App. Div. 2008).

Step one requires the party aggrieved by the delinquent

party's failure to fulfill its discovery obligations to move to

dismiss the complaint without prejudice. R. 4:23-5(a)(1). To

ensure the delinquent party is aware of its derelictions and has

the opportunity to correct them, the rule further provides that:

Upon being served with the order of
dismissal or suppression without prejudice,
counsel for the delinquent party shall
forthwith serve a copy of the order on the
client by regular and certified mail, return
receipt requested, accompanied by a notice
in the form prescribed by Appendix II-A of
these rules, specifically explaining the
consequences of failure to comply with the
discovery obligation and to file and serve a
timely motion to restore. If the delinquent
party is appearing pro se, service of the
order and notice hereby required shall be
made by counsel for the moving party.

[R. 4:23-5(a)(1)(emphasis added).]

14 A-0034-16T1
 Ordinarily, self-represented litigants are not entitled to

greater rights than litigants who are represented by counsel.

Ridge at Back Brook, L.L.C. v. Klenert, 437 N.J. Super. 90, 99

(App. Div. 2014). However, Rule 4:23-5 expressly requires the

party seeking relief from the court to ensure that pro se

litigants receive proper notice and be served with the order

imposing the sanction of dismissal or suppression without

prejudice available under step one. When a party is appearing

pro se, it is the responsibility of the attorney representing

the moving party to ensure that the pro se litigant has been

provided with service of the order and proper notice.

After complying with the procedures set out in step one of

the rule, a party may then move to dismiss the complaint with

prejudice. Rule 4:23-5(a)(2) provides that:

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 or suppression with
prejudice. The attorney for the delinquent
party shall, not later than 7 days prior to
the return date of the motion, file and
serve an affidavit reciting that the client
was previously served as required by
subparagraph (a)(1) and has been served with
an additional notification in the form
prescribed by Appendix II-B, of the pendency
of the motion to dismiss or suppress with
prejudice. In lieu thereof, the attorney
for the delinquent party may certify that
despite diligent inquiry, which shall be
detailed in the affidavit, the client's
whereabouts have not been able to be

15 A-0034-16T1
 determined and such service on the client
was therefore not made. If the delinquent
party is appearing pro se, the moving party
shall attach to the motion a similar
affidavit of service of the order and
notices or, in lieu thereof, a certification
as to why service was not made. Appearance
on the return date of the motion shall be
mandatory for the attorney for the
delinquent party or the delinquent pro se
party. The moving party need not appear but
may be required to do so by the court. The
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.

[R. 4:23-5(a)(2)(emphasis added).]

When the aggrieved party files a motion to dismiss with

prejudice, the delinquent party's attorney has two non-waivable

obligations: (1) file an affidavit with the motion judge

indicating that the client has been notified of the pending

motion's legal consequences in accordance with the form

prescribed; and (2) personally appear before the motion judge on

the return date of the motion. If the delinquent party is pro

se, the rule imposes an additional obligation on the attorney

representing the party seeking relief. The attorney for the

moving party is required to attach an affidavit of service to

the notice of motion and proposed order, or file an affidavit

explaining why service was not made.

16 A-0034-16T1
 Finally, Rule 4:23-5(a)(3) provides that:

If the attorney for the delinquent party
fails to timely serve the client with the
original order of dismissal or suppression
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 or
suppress with prejudice, the court shall,
unless exceptional circumstances are
demonstrated, 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.

[Emphasis added.]

These procedural safeguards are intended to "ensure that

the defaulting litigant is aware that the order of dismissal or

suppression without prejudice has been entered and of its

consequences." Pressler & Verniero, Current N.J. Court Rules,

comment 1.2 on R. 4:23-5 (2017). The best way to foster public

confidence in our civil courts is to decide cases on their

merits. Discovery rules are intended to create a level playing

field for all litigants and promote the resolution of civil

dispute on the merits. Judges are entrusted to ensure that these

rules are properly and fairly enforced.

Here, the system failed because both the motion judge and

the attorney representing the moving party failed to follow the

strict procedural requirements of Rule 4:23-5. The order of the

Law Division dated July 8, 2016 dismissing plaintiff's complaint

17 A-0034-16T1
with prejudice is vacated. Plaintiff's complaint is reinstated

and the case is remanded to the Law Division for the judge

assigned to this case to conduct a case management conference

with the attorneys to determine the status of discovery. The

judge shall thereafter enter a case management order setting a

new discovery end date, a schedule for filing dispositive

motions, and address such other matters as the judge deems

appropriate, including fixing a trial date.

Reversed and remanded. We do not retain jurisdiction.

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