Rules of Civil procedure

This lawsuit involved a letter of protection dispute arising from $183,107.30 of medical bills allegedly owed for services rendered by plaintiff North Jersey Hip & Knee Center to defendant Janet Quevedo after an automobile accident.  Plaintiff had treated Quevedo for her injuries from the accident based upon a letter of protection from Amy Peterson, Esq., Quevedo’s personal injury attorney.  Due to plaintiff’s failure to comply with a court order compelling discovery, the trial court dismissed the complaint with prejudice.  The issue in North Jersey Hip & Knee Center v. Quevedo, 2024 N.J. Super. Unpub. LEXIS 171 (App. Div. Feb. 5, 2024) was whether the trial court made a mistake in entering the ultimate sanction of dismissal versus other less drastic sanctions available due to the plaintiff’s failure to comply with the court order. 

Because defendant Quevedo did not have personal auto insurance, her attorney represented to Quevedo’s physician, Dr. Aiman Rifai (at North Jersey Hip & Knee Center), that she would protect plaintiff’s customary and reasonable fees to the extent available from a third-party recovery when the case was concluded. In other words, Quevedo’s attorney was essentially “guaranteeing” that the physician would be paid out of any third-party settlement if he agreed to render medical care to defendant.

Presumably, there was a third-party settlement but the plaintiff medical practice was not paid for its services.  Plaintiff sued defendant seeking damages for the payment of its medical bill, attorney’s fees, interest, and costs.  An answer was filed, including a third-party complaint against Dr. Rifai, which plaintiff’s counsel answered.

After the answer was filed, defendant served plaintiff with discovery requests including a request for Answers to Interrogatories, and Notice to Produce Documents and Request for Admissions.  After plaintiff failed to provide the requested discovery, defendant sent via e-mail “a good faith deficiency letter.”  Defendant also served plaintiff with a deposition notice for Dr. Rifai.  One day before the noticed deposition, plaintiff informed defendant that Dr. Rifai was unavailable.

Thereafter, defendant filed a motion to dismiss the complaint without prejudice pursuant to the court rule which permitted a dismissal based upon a failure to answer discovery.  The court entered an order granting the motion to dismiss the complaint without prejudice for failure to provide discovery but also entered an order to compel Dr. Rifai to appear for a deposition within thirty days or else “face sanctions as permitted by the rules of the court up to and including dismissal with prejudice.”

Defendant then served plaintiff with another notice of deposition prior to the end of the 30 day period.  Again, the day before the deposition, plaintiff informed defendant that Dr. Rifai was unavailable.  Defendant filed another motion to now dismiss the complaint with prejudice for failure to appear for a deposition and failure to comply with the court’s order.  Before the motion was heard, plaintiff did serve answers to the written discovery requests.

The trial court judge, however, granted the motion to dismiss the complaint with prejudice.  The judge found that the plaintiff had elected to willfully ignore the court’s directive.  Motions to vacate the dismissal and reinstate the complaint and also for reconsideration of that order were both denied.

This appeal ensued in which the plaintiff argued that the trial court judge “abused her discretion by failing to consider alternative sanctions and imposing the ultimate sanction of a dismissal with prejudice.”  The Appellate Division noted that the review of a dismissal of complaint with prejudice for discovery misconduct is based upon whether the trial court abused its discretion in entering the order.  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.”  Further, the Appellate Division stated that in determining the selection of a sanction, the court must consider the varying levels of culpability of delinquent parties.   Further, it held that the ultimate sanction of dismissal was to be used only sparingly.

While the Appellate Division commented that it did not condone “the dilatory pace at which plaintiff prosecuted its action and/or its failure to respond to discovery demands,” it nevertheless concurred with plaintiff’s argument that the judge erroneously dismissed the complaint with prejudice when lesser sanctions were available.  The Court noted that the trial court judge failed to address at any point that the defendant had served an untimely deposition notice on defendant.

Under the court rules, deposition notices must be served ten days in advance and the deposition notice for Dr. Rifai was only served eight days in advance.  There was no indication in the record that defendant’s attorney made any “good faith attempt” to confer with plaintiff’s attorney to resolve scheduling Dr. Rifai’s deposition.  The trial court judge also failed to consider that plaintiff had served answers to interrogatories and responses to the notice to produce documents before the return date of the motion.  Further, the trial court judge apparently gave little consideration to counsel’s representation that they did not receive the two e-mail discovery requests. 

Hence, the Appellate Division found that these considerations, “in addition to the untimely deposition notice, weighed in favor of a lesser sanction.”  Accordingly, the Court found that the drastic sanction of dismissal was unwarranted.  There existed lesser alternative sanctions which could address plaintiff’s failure to complete the deposition.  The Appellate Division did not express any view as to what lesser sanction should be imposed.  However, the Court reversed the orders which denied plaintiff’s motion to reinstate the complaint and remanded the case back to the trial court.