STACIE PERCELLA VS. JAMES M. DAVIS (L-0177-18, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3993-19
STACIE PERCELLA,
Plaintiff-Appellant,
v.
JAMES M. DAVIS, Individually,
and CITY OF BAYONNE,
Defendants-Respondents.
____________________________
Submitted April 21, 2021 – Decided May 28, 2021
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0177-18.
Bruno, Gerbino, Soriano & Aitken, attorneys for
appellant (Vincent F. Gerbino, on the briefs).
Florio Perrucci Steinhardt Cappelli Tipton & Taylor,
LLC, attorneys for respondents (Nicholas A. Sullivan,
on the brief).
PER CURIAM
In her complaint, plaintiff Stacie Percella alleges defendant City of
Bayonne terminated her employment in retaliation for her filing a federal lawsuit
against defendant alleging hostile environment discrimination and for her
actions as vice president of the collective negotiations representative of certain
of defendant's employees, and because she rebuffed defendant Mayor James M.
Davis's (Davis) alleged sexually harassing conduct.1 The complaint asserts five
claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -
50, and causes of action for breach of contract, breach of the covenant of good
faith and fair dealing, and for violations of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e-1 to -17. The complaint included claims
against Davis that the court dismissed due to lack of prosecution.
Plaintiff appeals from a February 3, 2020 order dismissing the complaint
with prejudice pursuant to Rule 4:23-5(a)(2) and Rule 4:23-2 for plaintiff's
alleged failure to provide discovery and failure to comply with court orders
directing her production of discovery. She also appeals from a May 22, 2020
order denying her motion for reconsideration of the dismissal order. Having
reviewed the record in light of the applicable legal principles, we vacate the
1
We refer to the allegations in plaintiff's amended complaint, which was filed
on February 23, 2018.
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February 3, 2020 order dismissing the complaint with prejudice and remand for
further proceedings. Because we vacate the February 3, 2020 order, it is
unnecessary to consider plaintiff's challenge to the order denying her motion for
reconsideration.
Prior to addressing plaintiff's arguments, we consider defendant's claim
the appeal from the February 3, 2020 order should be dismissed as untimely
under Rule 2:4-1(a). Defendant previously moved to dismiss the appeal from
the February 3, 2020 order on the same grounds as those asserted here, and this
court entered a July 23, 2020 order denying the motion. Defendant filed a
subsequent motion to dismiss the appeal as untimely and moot, and this court
denied the motion, explaining "[d]efendant's prior motion to dismiss the appeal
as untimely was denied on July 23, 2020. This motion, which essentially seeks
reconsideration, was not filed within [ten] days and is untimely. See R. 2:11-
6."
Defendant's persistence in again seeking a dismissal of the appeal from
the February 3, 2020 order based on timeliness grounds will not be rewarded.
We opt not to address again an argument we have previously rejected twice, first
on the merits and second because defendant's request for reconsideration of our
initial rejection of its dismissal motion was procedurally barred. See, e.g.,
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Lombardi v. Masso, 207 N.J. 517, 538 (2011) ("The law of the case doctrine
teaches us that a legal decision made in a particular matter 'should be respected
by all other lower or equal courts during the pendency of that case.'" (quoting
Lanzet v. Greenberg, 126 N.J. 168, 192 (1991))). For that reason alone, we
reject defendant's claim we should not address the merits of plaintiff's challenge
to the February 3, 2020 order.
Moreover, based on our review of the record, even assuming plaintiff's
notice of appeal from the February 3, 2020 order was untimely under Rule 2:4-
1(a), we otherwise exercise our discretion to consider plaintiff's notice of appeal
as a motion for leave to file a notice of appeal out of time and grant the motion.
As defendant acknowledges, plaintiff timely filed the notice of appeal from the
order denying the motion for reconsideration of the February 3, 2020 dismissal
order, and our consideration of the dismissal order is essential to the resolution
of the issues presented by plaintiff's timely appeal from the order denying her
reconsideration motion. See, e.g., Potomac Aviation, LLC v. Port Auth. of N.Y.
& N.J., 413 N.J. Super. 212, 221-22 (App. Div. 2010) (exercising the court's
discretion to extend the time for filing an appeal from a summary judgment order
where only the appeal from the denial of a reconsideration motion was timely,
and the substantive issues presented and the judge's rulings and reasoning on
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both motions were the same). We therefore address plaintiff's appeal on the
merits.
Plaintiff primarily argues the court erred by granting defendant's motion
to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2). Plaintiff
contends defendant was not entitled to relief under the Rule because defendant
failed to first obtain an order dismissing the complaint without prejudice and
otherwise did not comply with the procedural requirements of Rule 4:23-5(a)(1).
See, e.g., Thabo v. Z Transp., 452 N.J. Super. 359, 369 (App. Div. 2017)
(explaining Rule 4:23-5's "two-step procedural paradigm . . . 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 ").
As the motion court correctly recognized in its statement of reasons
denying plaintiff's reconsideration motion, it erred to the extent it entered the
February 3, 2020 dismissal order under Rule 4:23-5(a)(2). Defendant was not
entitled to a dismissal with prejudice under Rule 4:23-5(a)(2) because it did not
comply with the procedural prerequisites for such relief in Rule 4:23-5(a)(1).
See Thabo, 452 N.J. Super. at 368-71.
The court, however, explained its February 3, 2020 order also dismissed
the complaint with prejudice pursuant to Rule 4:23-2(b)(3), which permits a
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court to strike a pleading "with or without prejudice" where "a party fails to obey
an order to provide or permit discovery." R. 4:23-2(b)(3). The court therefore
denied defendant's motion for reconsideration, finding the February 3, 2020
dismissal order was properly entered in accordance with Rule 4:23-2(b)(3).
Because the court concluded dismissal of the complaint was not proper
under Rule 4:23-5(a)(2), it is unnecessary to address plaintiff's claim the
February 3, 2020 and May 22, 2020 orders should be reversed based on the
court's misapplication of the Rule. Any claim the court erred by dismissing the
complaint pursuant to Rule 4:23-5(a)(2) is moot because, in the end, the court
did not dismiss the complaint pursuant to the Rule. Instead, the court made clear
it entered the February 3, 2020 dismissal order pursuant only to Rule 4:23-
2(b)(3). As a result, the singular issue presented is whether the court erred by
dismissing the complaint with prejudice in accordance with Rule 4:23-2(b)(3).
I.
During oral argument on defendant's motion to dismiss the complaint, the
court observed the "case has a long and tortured history . . . with regard to
discovery . . . deficiencies." To be sure, discovery proceeded slowly in part
because plaintiff changed attorneys during the course of the litigation,
successively using three different attorneys to prosecute her case prior to its
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dismissal on February 3, 2020, and plaintiff's responses to defendant's discovery
demands were not timely provided. Ultimately, however, the court dismissed
the complaint with prejudice pursuant to Rule 4:23-2(b)(3), which permits
dismissal of a complaint with prejudice based on a plaintiff's failure to comply
with court orders. Abtrax Pharms., Inc. v. Elkins-Sinn, 139 N.J. 499, 513-14
(1995) (quoting R. 4:23-2(b)).
Here, we focus on the court's August 15, 2019 and November 8, 2019 case
management and discovery orders because they are the only court orders in the
record directing plaintiff's compliance with her discovery obligations, and they
are the orders the court, at least in part, relied on to support its dismissal of the
complaint with prejudice under Rule 4:23-2(b)(3). Based on the record
presented on appeal, we find it appropriate to detail the facts pertinent to the
entry of the orders and plaintiff's alleged failure to comply with them.
The Complaint
Plaintiff's complaint alleges she was employed by defendant for sixteen
years, from 2001 to 2016, and, during her employment, she served as "the duly
elected [v]ice [p]resident" of a collective negotiations representative of
employees working for defendant. Plaintiff alleges her employment was
terminated in 2016 in retaliation for actions she took on behalf of the employees
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in the collective negotiations unit and in response to a 2014 federal lawsuit she
filed against defendant and two individuals. According to the complaint,
plaintiff's federal lawsuit claimed she was subject to unlawful hostile
environment discrimination and retaliation.
The complaint also alleges plaintiff had known Davis for thirty-five years,
and she supported his efforts to become elected defendant's mayor in 2014.
According to the complaint, following his election, Davis engaged in "a pattern
and practice . . . of using the workplace to satisfy his personal sexual and
romantic needs." More particularly, the complaint details a series of sexually
suggestive, lurid, and inappropriate text messages Davis allegedly sent to
plaintiff's phone. Plaintiff detailed the messages in her complaint and attached
copies of the messages to the complaint. Plaintiff also alleged Davis offered to
settle and resolve her federal litigation by defendant paying plaintiff $150,000
if she "commit[ted] to involving herself romantically with" him. Plaintiff
alleged the termination of her employment was motivated in part by her refusal
to "succumb to . . . Davis'[s] sexual entreaties."
Defendant's Initial Discovery Demands
Defendant filed its answer to the complaint in August 2018, and the court
first ordered an August 17, 2019 discovery end date. In February 2019,
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defendant obtained new counsel. In March 2019, seven months after defendant
filed its answer, it served plaintiff's then-counsel with interrogatories and
document demands. Plaintiff did not timely file responses to defendant's
discovery requests. In June 2019, plaintiff obtained new counsel.
In June 2019, defendant's counsel sent plaintiff's new counsel the
interrogatories and document demands and granted plaintiff's counsel an
additional thirty days to provide responses. Plaintiff's counsel did not provide
responses within the extended time. In July 2019, defendant's counsel advised
plaintiff's counsel that she intended to file a motion to dismiss the complaint if
responses were not received by July 24, 2019.
On July 22, 2019, defendant moved to extend the August 17, 2019
discovery end date, in part because plaintiff's responses to defendant's discovery
demands were overdue. Three days later, defendant also moved to dismiss the
complaint without prejudice pursuant to Rule 4:23-5(a)(1). Plaintiff's counsel
wrote to the court, stating the parties were engaged in settlement discussions in
plaintiff's pending federal lawsuit against defendant. Plaintiff's counsel advised
settlement of the federal litigation would result in a resolution of the pending
state court case. Counsel requested a case management conference and a ninety-
day extension of the discovery end date.
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The August 15, 2019 Order
The court held a conference and entered an August 15, 2019 order that, in
pertinent part, required plaintiff serve her written discovery demands by August
21 and respond to defendant's written discovery demands by August 30. The
order also required the completion of party and fact witness depositions by
November 15, 2019. The court did not decide defendant's motion to dismiss the
complaint based on plaintiff's failure to provide responses to its initial
interrogatories and document demands. The motion to dismiss remained
pending.
On August 15, defendant also served plaintiff with supplemental
interrogatories and document demands. The record on appeal does not make
clear whether the August 15, 2019 order directing that plaintiff supply responses
to defendant's written discovery demands by August 30 also applied to
defendant's supplemental discovery demands. In an August 30, 2019 order, the
court granted defendant's motion to extend the discovery end date until
November 15.
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Discovery Following the August 15, 2019 Order
On September 10, 2019, plaintiff's counsel served plaintiff's responses to
defendant's initial interrogatories and document demands. In her responses to
three of the document demands, plaintiff referred defendant to documents she
produced to defendant in the federal litigation. In response to one of those three
document demands—which requested plaintiff produce text messages between
plaintiff and defendant—plaintiff also referred defendant to the text messages
annexed to the complaint.2 In response to document demands requesting "phone
records" between plaintiff and Davis "from January 1, 2012 to the present,"
plaintiff stated she did not possess such records.
In a September 11, 2019 letter to the court, plaintiff's counsel explained
the responses to defendant's discovery demands were delivered on September
10—ten days after the due date in the August 15 order—and offered a reason for
the delay; counsel stated plaintiff's son had been "gravely ill and hospitalized in
the ICU." Plaintiff's counsel requested that the court advise her of the status of
defendant's pending motion to dismiss the complaint based on the alleged failure
to provide discovery. On September 11, defendant withdrew its motion , and its
2
Annexed as an exhibit to the complaint included in plaintiff's appendix on
appeal are twelve pages of alleged text messages between plaintiff and Davis.
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counsel advised the court it was reviewing plaintiff's discovery responses "for
responsiveness."
Plaintiff did not serve her written discovery demands in accordance with
the August 21 deadline set forth in the August 15 order. Instead, plaintiff's
counsel served plaintiff's written discovery demands more than one month late,
on September 25.3 Plaintiff's counsel also filed a motion seeking leave to serve
her discovery demands out of time. Plaintiff's counsel certified the demands
were delivered late because she was new to the case, she had been involved in
an automobile accident, and plaintiff's son had been in the hospital. The court
later denied plaintiff's motion because it did not include "a list of proposed
discovery and deadlines" as required by Rule 4:24-1(c).
In a September 25, 2019 letter to plaintiff's counsel, defendant's counsel
detailed what she claimed were deficiencies in plaintiff's responses to
defendant's interrogatories and document demands. On the same date, defendant
served plaintiff's counsel with Health Insurance Portability and Accountability
Act of 1996 (HIPAA), 42 U.S.C. § 1320, medical record release forms (HIPAA
forms) for plaintiff to sign and return.
3
We note the parties and court variously, and inconsistently, refer to plaintiff's
written discovery demands as having been served on September 22 and 25, 2019.
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In early October, defendant filed a motion to compel the deposition of
plaintiff because defense counsel had not received dates for the deposition from
plaintiff's counsel. Six days later, defendant withdrew the motion because
plaintiff's deposition was scheduled for a date later in the month.
On October 16, 2019, plaintiff executed several HIPAA forms; however,
she modified the forms by limiting the timeframe of the records to be released.
On the same date, defense counsel advised plaintiff's counsel that plaintiff must
execute the HIPAA forms for the entire timeframe requested; reminded
plaintiff's counsel plaintiff's responses to interrogatories and document requests
were deficient because they referred defense counsel to documents in the federal
litigation; and noted plaintiff owed defendant responses to the supplemental
written discovery demands that were served on August 15.
On October 23, 2019, plaintiff again moved for leave to extend discovery
to serve her written discovery demands outside of the time prescribed in the
August 15 order. As reasons for the delay in timely serving the demands,
plaintiff's counsel certified: she had only recently commenced her participation
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in the case; she had been in a car accident; she had been busy with other matters;
and plaintiff's son was in the hospital. 4
The next day, defense counsel deposed plaintiff. During the deposition,
plaintiff testified she did not know the location of the phone she had used when
she exchanged text messages with Davis, and she had not seen the phone in a
few years. Defense counsel reserved the right to re-depose plaintiff because
plaintiff had not returned the HIPAA forms or complete responses to defendant's
written discovery demands prior to the deposition. In response to plaintiff's
motion to extend the time within which she could serve written discovery
demands, defendant's counsel sent the court a letter noting she reserved her right
to depose plaintiff again due to plaintiff's alleged failure to properly provide the
HIPAA forms.
The November 8, 2019 Order
On October 28, 2019, defendant again moved to dismiss the complaint for
failure to make discovery based on plaintiff's alleged failure to respond to
written discovery demands and provide signed HIPAA forms. On November 8,
4
The record on appeal does not include an order directly disposing of plaintiff's
motion. However, in its November 8, 2019 order, the court directs defendant to
respond "to plaintiff's . . . written discovery demands no later than December
20, 2019."
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2019, defendant withdrew the motion, and the court entered an order extending
the discovery end date to March 20, 2020 and scheduling a trial date for June
29, 2020.
The November 8, 2019 order also directed that: defense counsel serve
revised HIPAA forms by November 22, 2019;5 defendant respond to plaintiff's
discovery demands by December 20, 2019; the parties complete non-party
witness depositions by January 17, 2020; the parties complete the re-depositions
of plaintiff and all fact witnesses by January 24, 2020; and the parties complete
expert reports and expert depositions by specified dates leading up to March 20,
2020. Importantly, the November 8, 2019 order imposed only two requirements
directly on plaintiff; the order required plaintiff serve fully-executed HIPAA
forms on defendant by December 6, 2019, and respond to defense counsel's
September 25, 2019 "deficiency letter regarding written discovery responses by
November 29, 2019."6 The order did not require that plaintiff provide responses
to any written discovery demands previously served by defendant.
5
The record on appeal does not reflect the reason the court ordered revised
HIPAA forms.
6
The transcript of the November 8, 2019 hearing is not included in the record
on appeal. It is claimed that during the hearing, the court orally advised plaintiff
it would dismiss the complaint with prejudice if she did not serve fully-executed
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Discovery Following the November 8, 2019 Order
On November 19, 2019, defense counsel sent HIPAA forms to plaintiff's
counsel. On November 29, 2019, the day plaintiff's response to defense
counsel's deficiency letter was due, plaintiff's counsel advised defense counsel
she could not meet the deadline because plaintiff was in the hospital. On
December 3, 2019, defense counsel reminded plaintiff's counsel the November
8, 2019 order required plaintiff to serve her response to the deficiency letter by
November 29, 2019, and advised plaintiff's counsel she would file a motion to
dismiss the complaint with prejudice. Plaintiff's counsel replied, stating
plaintiff was discharged from the hospital on December 2, 2019, and counsel
needed plaintiff's help preparing the response. Plaintiff's counsel also stated she
was "not with a big law firm" and had "other cases, not just this one."
On December 3, 2019, defense counsel also served a notice to re-depose
plaintiff on January 14, 2020. Additionally, according to defendant's counsel,
during a December 5, 2019 conference with the federal court in the federal
litigation, plaintiff's counsel said plaintiff "found" her phone. On December 17,
HIPAA forms by December 6, 2019. We note the November 8, 2019 order does
not state the complaint would be dismissed if plaintiff failed to provide the
release forms by the December 6, 2019 deadline.
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2019, defense counsel served additional HIPAA forms after responses to
discovery demands provided by plaintiff revealed previously undisclosed
doctors she had seen.
In a December 20, 2019 email, plaintiff's counsel advised defendant's
counsel the noticed January 14, 2020 re-deposition of plaintiff "will not work
for us," and plaintiff's counsel was "scheduling depositions on a multi-attorney
case and [would] get back to" defendant's counsel. On December 23, 2019,
defense counsel served a notice to re-depose plaintiff on January 16, 2020.
Defendant's Motion to Dismiss the Complaint with Prejudice
On December 23, 2019, defendant moved to dismiss the complaint with
prejudice pursuant to Rule 4:23-5(a)(2) and based on plaintiff's alleged
violations of the August 15 and November 8 orders. 7 Defendant's motion was
founded on five separate claims.
First, defendant argued plaintiff failed to timely provide the signed
HIPAA forms in accordance with the November 8, 2019 order, and failed to
provide "Apple logs regarding the 'texts' . . . in response to [defendant's] August
7
Defendant's notice of motion to dismiss the complaint refers only to Rule 4:23-
5. Its papers in support of the motion, however, make clear it sought dismissal
based on plaintiff's alleged violations of the August 15 and November 8, 2019
orders as well.
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15, 2019 supplemental document request." Defendant alleged those failures
effectively prevented defendant from re-deposing plaintiff by the January 24,
2020 deadline in the November 8, 2019 order.
Second, defendant argued that on November 18, 2019, it served plaintiff
with revised HIPAA forms in accordance with the November 8 order and two
additional HIPAA forms in December based on documents plaintiff provided,
and plaintiff had not returned executed forms by December 6 as required by the
November order.
Third, defendant alleged plaintiff failed to respond to defendant's
counsel's September 25, 2019 deficiency letter as required by the November 8
order.
Fourth, defendant asserted plaintiff failed to depose or schedule the
depositions of any fact witnesses in accordance with the November 8 order.
Last, defendant claimed plaintiff failed to produce all requested
documents, including all text messages between her and Davis, and failed to
produce her phone, which defendant sought for a forensic examination.
Plaintiff's counsel filed a January 22, 2020 certification in response to
defendant's motion. In reply to defendant's first two claims—that plaintiff failed
to provide signed HIPAA forms by December 5 as required by the November 8
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order, and failed to provide Apple text logs—plaintiff's counsel stated she
received "most of the executed HIPAA forms" from plaintiff on December 5,
2019, but she "overlooked sending them to . . . defendant's counsel, and
[defense] counsel never asked . . . for them before bringing the motion."
Plaintiff's counsel sent the executed HIPAA forms to defendant's counsel on
January 3, 2020, almost a month after they were provided by plaintiff and were
due under the November 8 order, and eleven days after defendant filed its motion
to dismiss the complaint. Plaintiff's counsel represented that at the time of her
January 22, 2020 certification, she had "returned all the executed HIPAA forms
to defendant."
Plaintiff's counsel also disputed defendant's claimed need for Apple logs
regarding plaintiff's text messages, explaining defendant obtained 28,000 pages
of plaintiff's cellphone records from her cellphone carrier. 8 Plaintiff's counsel
also referred to plaintiff's deposition testimony that she had been advised "the
text messages were too old for her to get a text log using the
website . . . defendant[] requested that she use." Counsel asserted plaintiff
could not "produce what does not exist," and questioned defendant's claimed
8
Neither the August 15 nor November 8 order directed plaintiff to produce text
message logs.
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need for cellphone data because Davis admitted sending the offensive text
messages annexed to the complaint.
Plaintiff's counsel's certification disputed defendant's third claim that
plaintiff failed to comply with the November 8 order's directive that she respond
to defendant's September 25, 2019 deficiency letter by November 29. Plaintiff's
counsel responded to the deficiency letter, albeit almost two months late, on
January 22, 2020.
Plaintiff's counsel also disputed defendant's fourth claim that she failed to
depose or schedule the depositions of any fact witnesses in accordance with the
November 8 order. Plaintiff's counsel represented she issued deposition notices
"in the fall." She explained, however, that she "had not had a chance to go
through [defendant's] discovery responses," which she described as
"voluminous." She also asserted defendant failed to provide Davis's personnel
file in its response to plaintiff's discovery demands, and that defendant had "only
just produced documents on December 20." Plaintiff's counsel stated she
"would like to review [defendant's] responses before doing depositions," and
"[t]he previous schedule [did] not permit this."
Plaintiff's counsel further addressed defendant's fifth claim—that plaintiff
failed to produce all requested documents, including the text messages between
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her and Davis, and failed to produce her phone. Counsel explained "plaintiff
produced all text messages between herself and Davis," and referred defendant
by document number to the text messages provided in response to defendant's
document demands. Counsel also stated plaintiff does not have the phone
defendant requested that she produce.
Plaintiff's counsel also offered a more general explanation for the delays
in providing the requested discovery and the failure to strictly comply with the
requirements of the November 8, 2019 order. Plaintiff's counsel stated:
[Plaintiff] was hospitalized on Thanksgiving, and her
husband had to have surgery shortly afterwards. . . . I
have been tied up preparing an appellate brief, I have
been suffering from debilitating migraine headaches
likely related to a rollover car crash in August, I had to
attend a funeral earlier this month of a dear friend, and
I have discovery closing in a federal case that is much
older than this case (2016). I also have a federal trial
for which the pretrial conference is scheduled the
second week in February. In addition, I am the
caregiver for my brother who is a paraplegic. I am
overloaded with work.
Plaintiff's counsel certified plaintiff was "unhappy with [her] representation and
has instructed [her] to file a motion for withdrawal." Plaintiff's counsel opined
the disruption "will harm" plaintiff, but counsel stated she would file the motion
for withdrawal "shortly."
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On January 29, 2020, the court heard argument on defendant's motion and
reserved decision. On February 3, 2020, plaintiff's counsel filed a February 1,
2020 certification from plaintiff in opposition to the motion. 9 Plaintiff offered
an explanation for some of the delays in responding to defendant's discovery
demands and in complying with the court's orders. Plaintiff stated her twenty -
five-year-old son was gravely ill during August 2019 and was in the ICU of a
hospital on a respirator for "over a week." Plaintiff was also admitted to the
hospital on Thanksgiving, and her husband had a December 10 surgical
procedure. Plaintiff noted it was during the period from August throu gh
December that defendant filed numerous demands for information and
documents and filed a series of motions.
Plaintiff also noted that on December 5, 2019, defendant received "103
pages in chronological order . . . of all text messages" and, on October 31, 2019,
received "over 28,000 pages of log records of texts and calls from [her] phone
and all [her] contacts for 8 years." Plaintiff disputed defendant's claim she could
download Apple iMessage link information, explaining she had attempted to do
so, but was advised by her cellphone carrier the information was no longer
9
Although plaintiff's certification was filed following argument on the motion,
the court considered it. In its written statement of reasons on the reconsideration
motion, the court references the certification.
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available because the telephone number she used when receiving texts from
Davis "was no longer in use for this plaintiff." Plaintiff further explained she
could not produce the phone defendant requested because she does not have it.
In a February 3, 2020 written statement of reasons, the court found
dismissal with prejudice was appropriate under the circumstances because the
discovery plaintiff provided was "untimely and piecemeal, at best"; another
judge warned plaintiff on November 8, 2019 that her case would be dismissed
with prejudice if she did not supply fully-executed HIPAA forms; plaintiff
consistently failed to provide discovery and failed to comply with two court
orders relating to discovery; and the case already had 216 more days of
discovery than the Rules allotted for Track 3 cases. The court also found it
"concerning that the phone containing the messages at the heart of this case
cannot be found." The court found dismissal with prejudice was appropriate
under Rule 4:23-5(a)(2) and Rule 4:23-2.
Plaintiff obtained new counsel, who filed a motion for reconsideration.
Plaintiff's counsel argued the court erred by dismissing the complaint with
prejudice because there was no order of dismissal without prejudice under Rule
4:23-5(a)(1), and defendant never moved to compel under Rule 4:23-5(c) before
moving to dismiss with prejudice under Rule 4:23-5(a)(2). Plaintiff's counsel
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also attached as exhibits five notices of deposition, dated October 17 and
October 18, 2019, that plaintiff's prior counsel served on fact witnesses.
Defendant opposed the motion, arguing the court properly dismissed the
complaint with prejudice pursuant to Rules 4:23-5(a)(2) and 4:23-2. In addition
to reiterating the many discovery issues in the case, defendant asserted plaintiff
had an audio recording of a hearing, but she refused to provide it because it
contained conversations between plaintiff and her attorney. 10
The court heard argument on the motion, and, on May 22, 2020, denied
plaintiff's motion for reconsideration. As noted, in its written statement of
reasons, the court recognized it erred in part by dismissing the complaint with
prejudice under Rule 4:23-5(a)(2) because the complaint had not previously
been dismissed without prejudice in accordance with Rule 4:23-5(a)(1). The
court found the error harmless because it also had dismissed the complaint with
prejudice pursuant to Rule 4:23-2(b)(3).
The court observed that in July 2019, defendant moved to dismiss without
prejudice under Rule 4:23-5(a)(1) for plaintiff's failure to respond to
interrogatories and produce documents, and the court instead held a case
10
Plaintiff referred to the hearing in her responses to defendant's supplemental
discovery requests.
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management conference and entered an August 15, 2019 case management
order. The court found plaintiff then violated the August 15, 2019 order by
failing to serve her written discovery demands by August 30, 2019, and plaintiff
sought an extension of the discovery deadline from the court, claiming she could
not meet the deadline because she and counsel had various health and family-
related issues.
The court explained that in October, defendant moved a second time to
dismiss based on plaintiff's allegedly deficient answers to discovery requests,
and defendant withdrew the motion when the court entered a November 8, 2019
order extending discovery and revising the dates discovery was due. The court
found that during the November 8 hearing another judge warned plaintiff her
case would be dismissed with prejudice if she did not provide fully-executed
HIPAA forms. The court stated it received a letter from defense counsel,
advising that plaintiff served the HIPAA forms late and failed to fully-execute
all of them. The court, however, made no mention of plaintiff's counsel's
certification stating all the HIPAA authorizations had been provided, albeit late
because of her workload, illness, and the fact that she "overlooked" providing
the forms plaintiff timely provided to her on December 5, 2019. The court
acknowledged plaintiff's counsel had represented the HIPAA forms were
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provided on January 3, 2020, twenty-eight days late. 11 And, in her certification
opposing defendant's motion, plaintiff's counsel represented that all of the
outstanding HIPAA forms had been provided to defendant's counsel.
The court also referred to the circumstances surrounding the requests fo r
the production of plaintiff's phone and text messages. The court observed it was
unclear whether plaintiff actually had her phone. The court found plaintiff
represented to the judge in the federal litigation that she had found the phone
she used to exchange texts. The record, however, reflects only that plaintiff's
counsel told the federal judge plaintiff had found her phone. There is no
evidence plaintiff made any statement to the federal judge concerning the status
of her phone, and in her February 1, 2020 certification, plaintiff states she does
not have the phone. Indeed, the court noted plaintiff submitted a March 18,
11
Defendant's counsel advised two of the HIPAA forms had not been signed.
It is unclear whether the forms that were completed were those first served by
defendant in December 2019, following the November 20, 2019 due date for
defendant's service of revised HIPAA forms under the November 8 order. The
record does not show defendant obtained permission from the court to serve
additional HIPAA forms following the November 20 deadline in the order. The
record also does not include an order directing that plaintiff provide executed
HIPAA forms that were first served on her following the November 20, 2019
deadline, and it appears defendant served two HIPAA forms on plaintiff after
the December 6, 2019 due date for her return of fully-executed forms set forth
in the November 8 order. Plaintiff could not have violated the November 8 order
by failing to return executed HIPAA forms that were first provided to her
following the December 6 due date set forth in the order.
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2017 receipt for the purchase of a new iPhone that the court found "suggest[ed],"
but did not dispositively prove, plaintiff lost the phone she used to exchange text
messages with Davis.
The court also parsed statements made by plaintiff and her then-counsel
regarding their production of all text messages between plaintiff and Davis,
found the statements appeared contradictory, and concluded it was "unclear
whether [plaintiff] turned over all of her text messages." In apparent recognition
the record presented a fact issue as to whether plaintiff had turned over all of
the pertinent text messages that the court found "go[] to the heart of [p]laintiff's
case," the court observed only that "[i]f less than all of the texts have been
served, then [p]laintiff is withholding discovery in violation of the court's
orders."
The court further found plaintiff's discovery responses were deficient
because they referred defendant to documents that were produced discovery in
the federal litigation, failed to identify specific documents, and stated documents
were already in defendant's possession. The court found plaintiff failed to
provide documents responsive to defendant's supplemental document demands
that "go[] to the heart of [p]laintiff's case," including "iMessage logs containing
the text messages supporting" plaintiff's sexual harassment and wrongful
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27
termination claims. The court rejected plaintiff's claim, contained in her
certification, that she could not retrieve the logs because they were no longer
available. The court accepted defendant's counsel's argument plaintiff did not
follow the appropriate procedure to obtain the logs from the carrier , stating it
"agree[d] with [d]efendant that [plaintiff's] confusion does not remove her
obligation to produce" the logs.
The court found "it is difficult to ascertain[, with respect to the]
outstanding discovery[,] where counsel's errors end and where [p]laintiff's
actions begin," but then incongruously, and without reference to any action or
inaction by plaintiff, concluded plaintiff was not a "blameless client." The court
found neither plaintiff nor her prior counsel "appears to have been particularly
diligent in serving or responding to discovery in this matter," and concluded that
"[a]t worst, [p]laintiff's actions[, which the court did not define,] appear
contumacious and willful."
The court concluded plaintiff "simply has not complied with the rules of
discovery, warranting dismissal of her case with prejudice." The court entered
the May 22, 2020 order denying plaintiff's motion for reconsideration of the
February 3, 2020 order dismissing the complaint with prejudice. This appeal
followed.
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II.
"[T]he standard of review for dismissal of a complaint with prejudice for
discovery misconduct is whether the trial court abused its discretion, a standard
that cautions appellate courts not to interfere unless an injustice appears to have
been done." Abtrax Pharms., 139 N.J. at 517. A court abuses its discretion
when its "decision [was] made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis." United
States ex rel. U.S. Dep't of Agric. v. Scurry, 193 N.J. 492, 504 (2008) (alteration
in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Our "[d]iscovery rules are designed 'to further the public policies of
expeditious handling of cases, avoiding stale evidence, and providing
uniformity, predictability[,] and security in the conduct of litigation.'" Abtrax
Pharms., 139 N.J. at 512 (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)).
"It necessarily follows, if such rules are to be effective, that the courts impose
appropriate sanctions for violations thereof." Oliviero v. Porter Hayden Co.,
241 N.J. Super. 381, 387 (App. Div. 1990) (quoting Evtush v. Hudson Bus
Transp. Co., 7 N.J. 167, 173 (1951)).
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29
Rule 4:23-2 allows for dismissal of a complaint "with or without
prejudice" in response to a party's failure to comply with an order to provide
discovery:
If a party . . . fails to obey an order to provide or permit
discovery, including an order made under [Rule] 4:23-
1, the court in which the action is pending may make
such orders in regard to the failure as are just, and
among others the following:
(1) An order that the matters regarding which the order
was made or any other designated facts shall be taken
to be established for the purposes of the action in
accordance with the claim of the party obtaining the
order;
(2) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or
prohibiting the introduction of designated matters in
evidence;
(3) An 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;
(4) In lieu of any of the foregoing orders or in addition
thereto, an order treating as a contempt of court the
failure to obey any orders.
In lieu of any of the foregoing orders or in addition
thereto, the court shall require the party failing to obey
the order to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court
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finds that the failure was substantially justified or that
other circumstances make an award of expenses unjust.
[R. 4:23-2(b).]
A "trial court has an array of available remedies to enforce compliance
with a court rule or one of its orders." Williams v. Am. Auto Logistics, 226 N.J.
117, 124 (2016) (quoting Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100,
115 (2005)). A "court must . . . carefully weigh what sanction is the appropriate
one, choosing the approach that imposes a sanction consistent with fundamental
fairness to both parties." Id. at 125 (alteration in original) (quoting Robertet
Flavors, 203 N.J. at 282-83). In its selection of a sanction, a court must consider
"[t]he varying levels of culpability of delinquent parties," Georgis v. Scarpa,
226 N.J. Super. 244, 251 (App. Div. 1988), and "[t]he extent to which [one
party] has impaired [the other's] case may guide the court in determining
whether less severe sanctions will suffice," Williams, 226 N.J. at 125 (second
and third alterations in original) (quoting Gonzalez, 185 N.J. at 116); see also
Casinelli v. Manglapus, 181 N.J. 354, 365 (2004) (explaining a determination
whether dismissal is appropriate requires an assessment of the "facts, including
the willfulness of the violation, the ability of plaintiff to produce the
[outstanding discovery], the proximity of trial, and prejudice to the adversary").
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The "ultimate sanction of dismissal" is to be used "only sparingly."
Abtrax Pharms., 139 N.J. at 514 (quoting Zaccardi, 88 N.J. at 253). "If a lesser
sanction than dismissal suffices to erase the prejudice to the non-delinquent
party, dismissal of the complaint is not appropriate and constitutes an abuse of
discretion." Georgis, 226 N.J. Super. at 251; see also Robertet Flavors, 203 N.J.
at 274 (recognizing dismissal as the "ultimate sanction" to "be ordered only
when no lesser sanction will suffice to erase the prejudice" (citations omitted));
Il Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004) (explaining
a dismissal of a claim for failure to comply with discovery is "the last and least
favorable option"). "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." Abtrax Pharms., 139 N.J.
at 514 (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)).
Here, the court dismissed plaintiff's complaint pursuant to Rule 4:23-
2(b)(3) which, as noted, permits a dismissal with prejudice where "a party fails
to obey an order to provide or permit discovery." The court's decision, however,
more broadly addresses plaintiff's alleged failures to generally comply with its
discovery obligations under the Rules during the litigation. In fact, the court
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32
concludes plaintiff's complaint should be dismissed with prejudice because she
failed to comply with the "rules of discovery" and not based on the more
particularized finding required for relief under Rule 4:23-2(b)(3)—that
dismissal with prejudice is appropriate based on plaintiff's failure "to obey an
order to provide or permit discovery."
The record shows plaintiff and her counsel did not fully comply with the
deadlines for responding to discovery in accordance with the applicable rules.
Defendant may have properly moved for relief based on those failures—and in
fact moved on a number of occasions for relief based on them—under different
rules. See, e.g., R. 4:23-1 (providing for a motion to compel discovery based
on a party's failure to respond or provision of an evasive or incomplete
response); R. 4:23-5 (providing for a motion to strike pleadings based on a
failure to provide discovery). Here, however, defendant sought and obtained the
dismissal order under Rule 4:23-2(b)(3), which permits a dismissal based solely
on a party's failure to obey a court order. See Abtrax Pharms., 139 N.J. at 513(observing "Rule 4:23-2(b) authorizes the imposition of sanctions for failing to
comply with a court order"); Rubin v. Tress, 464 N.J. Super. 49, 56 (App. Div.
2020) (stating that under Rule 4:23-2(b), one of the sanctions a court may
impose on a party that fails "to obey an order to provide or permit discovery" is
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33
to dismiss the complaint "with or without prejudice" (quoting R. 4:23-2(b))).
Thus, the court could only properly impose the ultimate sanction of dismissal
with prejudice under Rule 4:23-2(b)(3) based on plaintiff's failure to comply
with a court order. See Abtrax Pharms., 139 N.J. at 513-14; Rubin, 464 N.J.
Super. at 56.
The court's decision to dismiss the complaint with prejudice under Rule
4:23-2(b)(3) was not based solely on plaintiff's alleged violations of court
orders. For example, the court dismissed the complaint with prejudice in part
based on plaintiff's prior failures to provide discovery generally as required by
the rules, and also due to plaintiff's alleged failure to produce her phone, texts,
and iMessage logs. Indeed, the court weighed heavily the alleged failure to
provide those items, finding they went to the essence of plaintiff's case—her
claim she was sexually harassed via text message by Davis. 12 The record,
however, is devoid of an order directing plaintiff's production of any of those
items. If those items were not provided in response to a discovery demand,
12
The court's finding the text messages went to the essence of plaintiff's case
appears not to be entirely accurate. The text messages appear to be at the center
of her sexual discrimination claims under the LAD, but plaintiff's complaint
includes other claims, including that she was terminated in retaliation for
activities as vice president of the collective negotiations representative of
defendant's employees.
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34
defendant should have moved either for any order compelling plaintiff to
provide responses, see R. 4:23-1, or to dismiss the complaint without prejudice
pursuant to Rule 4:23-5(a)(1), based on the alleged failure. Lacking any order
directing that plaintiff produce those items, defendant was not entitled to relief
under Rule 4:23-2(b)(3) based on plaintiff's alleged failure to produce them.
The court also erred by relying on plaintiff's purported failure to provide
the items because, as the court acknowledged, there was conflicting evidence
presented as to whether plaintiff was in possession of, or had access to, them. It
was error for the court to find plaintiff failed to comply with her discovery
obligations because she presented competent evidence—her and her then-
counsel's certifications—asserting she did not have any additional text messages
or her phone, and she could not access the message logs. To the extent defendant
presented any competent evidence disputing plaintiff's assertions, the court
should have resolved any pertinent fact issues at an evidentiary hearing. See
Walker v. Choudhary, 425 N.J. Super. 135, 147-48 (App. Div. 2012). Instead,
the court made credibility determinations—rejecting plaintiff's version of the
pertinent events—based on conflicting certifications. See K.A.F. v. D.L.M., 437
N.J. Super. 123, 137-38 (App. Div. 2014) (explaining a court cannot make
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35
credibility determinations based on conflicting affidavits or certifications). It
was error for the court to do so. Ibid.The court also erred by finding a violation of the August 15, 2019 order
required dismissal of the complaint with prejudice. The August 15 order
directed plaintiff to do only two things. It first required plaintiff to serve
discovery responses to defendant by August 30, 2019. Plaintiff failed to comply
with the requirement. She served her discovery responses ten days late, and, in
response, defendant withdrew a motion it had filed to dismiss the complaint
based on the violation of the order. When defendant filed its motion to dismiss
with prejudice on December 23, 2019 under Rule 4:23-2(b)(3), plaintiff was not
in violation of the portion of the August 15 order requiring that she respond to
defendant's discovery demands, and defendant could not demonstrate any
prejudice resulting from the tardy responses. Indeed, as noted, after receiving
the responses, defendant withdrew its then-pending motion to dismiss the
complaint, noting it intended to review the responses only for deficiencies. We
are convinced the short delay in providing the discovery responses could not
provide a proper basis for the ultimate sanction of dismissal ordered on February
3, 2020.
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36
The August 15 order also required that plaintiff serve her discovery
demands on defendant by August 21, 2019. Plaintiff ignored this requirement
and served her discovery demands more than a month later, on September 25.
Plaintiff recognized her failure; she moved for leave to serve her discovery
demands out-of-time. The motion was subsequently denied on procedural
grounds, and later refiled. Any issues related to the late delivery of the demands
were resolved by the November 8 order which directed that defendant respond
to plaintiff's discovery demands by December 20, 2019. Thus, by the time
defendant filed its motion to dismiss the complaint with prejudice in late
December 2019, and the court decided the motion on February 3, 2020, any
issues related to the late service of the discovery demands had been resolved.
Moreover, although the motion court cited plaintiff's failure to timely
serve her discovery demands by the deadline imposed by the August 15 order, a
dismissal of plaintiff's complaint with prejudice based on that failure is
manifestly erroneous because plaintiff had no obligation to serve discovery
demands in the first instance. The August 15 order did not require that plaintiff
serve discovery demands. It provided only that plaintiff serve her discovery
demands by a date certain, if she chose to serve them at all. An order dismissing
a complaint with prejudice based on a plaintiff's failure to serve discovery
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37
demands is never appropriate because a lesser sanction for such a failure—
striking the discovery demands—is always available. See generally Georgis,
226 N.J. Super. at 251 (noting it is an abuse of discretion to dismiss a complaint
with prejudice where a lesser sanction than dismissal is sufficient to erase any
prejudice to defendant).
In sum, when defendant filed its motion to dismiss the complaint with
prejudice, there is no evidence plaintiff was in violation of the August 15, 2019
order. As a result, any alleged violation of the August 15 order could not support
imposition of the sanction of last resort—dismissal of plaintiff's complaint with
prejudice on February 3, 2020.
Similarly, and in pertinent part, the November 8, 2019 order required only
that plaintiff provide signed HIPAA forms by December 6, 2019 and respond to
defense counsel's deficiency letter regarding written discovery responses by
November 29, 2019. 13 It is undisputed plaintiff did not timely comply with the
13
In part, the court found plaintiff violated the November 8, 2019 order by
failing to provide responses to defendant's supplemental discovery demands by
November 29, 2019. The court's finding is inaccurate and contradicted by the
plain language of the order. The November 8 order required plaintiff's response
to defendant's September 25, 2019 deficiency letter by November 29; the order
makes no mention of a deadline for plaintiff's responses to the August 2019
supplemental written discovery demands, and the order does not require that
plaintiff provide responses to those demands.
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38
deadlines imposed by the court's order. By early January 2020, however,
plaintiff's counsel delivered the HIPAA forms and, prior to oral argument on
defendant's motion to dismiss, plaintiff's counsel delivered a response to the
deficiency letter. As such, the record before the court when it decided the
dismissal motion was that plaintiff supplied the requisite HIPAA forms and
letter as required by the November 8 order, but delivered each a few weeks late.
The record also showed plaintiff's counsel explained that illness and the press
of other business in her practice delayed the provision of the items in accordance
with the deadlines in the order. In her certification, plaintiff also addressed the
circumstances surrounding the delivery of discovery.
In its decision, the court did not consider or address plaintiff's counsel's
explanation for the delay in providing the HIPAA forms and letter; determine or
make reasoned findings concerning the culpability of plaintiff or her then-
counsel; or consider the manner in which the delay in providing the information
impaired defendant's case, if at all.14 See Williams, 226 N.J. at 125; Georgis,
14
The court made vague and confusing findings concerning plaintiff and her
then-counsel's purported culpability for the delay in providing the deficiency
letter and HIPAA forms in accordance with the November 8 order. The court
did not actually find either plaintiff or her then-counsel acted willfully or
contumaciously in failing comply with the November 8 order's deadlines.
Instead, the court only concluded that "[a]t worst, [p]laintiff's actions appear
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39
226 N.J. Super. at 251. The court also failed to address, consider, or decide
whether any of the other available sanctions, short of a dismissal with prejudice,
was appropriate to address plaintiff's late delivery of the only two items the
November 8 order required that she provide. See Georgis, 226 N.J. Super. at
251. The court also failed to "carefully weigh what sanction is the appropriate
one, choosing the approach that imposes a sanction consistent with fundamental
fairness to both parties," Robertet Flavors, 203 N.J. at 282-83, considering that,
by the time the motion was argued and decided, plaintiff and her counsel
represented they were in full compliance with the court's orders.
We do not excuse any failure to comply with a court order, but we are
convinced the court abused its discretion by failing to apply the appropriate legal
standard in assessing and deciding defendant's motion for dismissal with
prejudice under Rule 4:23-2(b)(3). See Scurry, 193 N.J. at 504. We therefore
contumacious and willful." That vague finding is rendered even more confusing
by the court's statement that "it is difficult to ascertain regarding the outstanding
discovery where counsel's errors end and where [p]laintiff's actions begin."
Those statements are untethered to any findings of fact concerning the actions
or inactions of plaintiff, or her then-counsel. It is also unclear whether those
statements are intended to apply generally to the court's determination that
plaintiff failed to comply with discovery obligations under the rules or more
specifically to any violation of the August 15 or November 8 orders. Of course,
it is only a violation of the orders that provides a basis for relief under Rule
4:23-2(b)(3).
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40
vacate the February 3, 2020 dismissal order and remand for reconsideration of
defendant's motion in accordance with the standard applicable under the Rule.
The court may in its discretion permit the submission of additional papers by
the parties and shall hear oral argument. The court shall determine if an
evidentiary hearing is required. We do not offer an opinion on the merits of
defendant's motion. The remand court shall decide the motion based on the
record presented. Because the motion court made credibility determinations, the
matter shall be assigned to a different judge on remand. See R.L. v. Voytac, 199
N.J. 285, 306 (2009).
We do not address the merits of plaintiff's claim the court erred by denying
its motion for reconsideration because we have determined the court abused its
discretion by granting the dismissal motion in the first instance.
Vacated and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
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41