This appeal concerned the trial court’s dismissal of the plaintiff’s complaint with prejudice for failure to provide discovery. The matter involved a complaint against the plaintiff’s commercial condominium association’s board members and property manager for consumer fraud, common law fraud, unjust enrichment, and negligent misrepresentation. After filing an answer, the defendants served plaintiff with a notice to produce documents and interrogatories. The issue in Arsenis v. Frank, 2024 N.J. Super. Unpub. LEXIS 2164 (App. Div. Sept. 17, 2024) was whether the trial court judge abused her discretion by dismissing plaintiff’s lawsuit due to her failure to provide discovery.
In response to defendants’ request for discovery, plaintiff did provide certain information in response to the discovery demands, which defendants deemed inadequate. Defendants’ counsel sent plaintiff two deficiency letters, detailing their objections to various interrogatories and document requests. The defendants demanded fully responsive answers to these discovery requests within two weeks to avoid motion practice.
Plaintiff, however, failed to respond to the deficiency letters and, thereafter, defendants filed a motion to compel more specific responses to their demands. The trial court judge granted that motion, issuing an order to require plaintiff to provide more specific responses within seven days. In that order, the court elaborated as to how plaintiff should address each of the requested interrogatories.
Plaintiff failed to comply with this order. Thus, defendants filed another motion to dismiss her complaint, without prejudice, which motion was granted. Sometime thereafter, plaintiff filed a motion to reinstate her complaint, claiming that she had complied with the prior orders. The judge denied plaintiff’s motion, finding that plaintiff failed to comply with both prior orders “and otherwise provide good cause to vacate dismissal of the case and restoration to the active trial calendar.”
Thereafter, defendants now filed a motion to dismiss plaintiff’s complaint with prejudice, which motion the trial court judge again granted. The judge noted that “not withstanding the prior court’s explicit direction to plaintiff,” she failed to comply with the court’s prior orders. Thus, the trial court judge dismissed plaintiff’s complaint with prejudice.
Upon appeal, the Appellate Division considered whether the trial court had abused its discretion in entering its orders to dismiss the complaint. The Court noted that dismissal of a complaint under court Rule 4:23-5 follows a two-step process. First, the non-delinquent party may move for dismissal without prejudice for noncompliance with discovery obligations. If the delinquent party does provide full and responsive discovery, it may then move to vacate the dismissal without prejudice at any time before the entry of an order of dismissal with prejudice.
But, if the delinquent party fails to cure its discovery delinquency, “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 . . . with prejudice.” According to Rule 4:23-5(a)(2), the court is to grant the motion to dismiss with prejudice unless a motion to vacate the previously entered order of dismissal without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.
The Appellate Division further noted that this rule advances two objectives, which are to compel discovery which would promote resolution of disputes on the merits and “to afford the aggrieved party the right to seek final resolution through dismissal.” It noted that the dismissal of a claim for failure to comply with discovery is the “last and least favorable option.”
In this matter, however, plaintiff failed to move to vacate the without prejudice dismissal order, she had not demonstrated that she provided fully responsive discovery or presented any circumstances that qualified as exceptional circumstances to avoid the dismissal of her action with prejudice.
The Court further noted that it was not persuaded by the plaintiff’s argument that the motion judge failed “to carefully scrutinize her discovery responses before dismissing her complaint with prejudice.” Accordingly, the Appellate Division upheld the ultimate sanction that was imposed upon plaintiff, to dismiss her complaint with prejudice.
