Suarez v. Sumitomo Chemical Co.

• Decision Date: 04 October 1991
• Citation: 607 A.2d 1057,256 N.J.Super. 683
• Parties: Victoria SUAREZ, Plaintiff, v. SUMITOMO CHEMICAL COMPANY, Johnson Chemical Company, Inc., Safeguard Chemical Corporation, and John Does, Defendants.
• Court: New Jersey Superior Court

Page 683

256 N.J.Super. 683

607 A.2d 1057

Victoria SUAREZ, Plaintiff, v. SUMITOMO CHEMICAL COMPANY, Johnson Chemical Company, Inc. Safeguard Chemical Corporation, and John Does, Defendants.

Superior Court of New Jersey, Law Division Essex County.

Decided Oct. 4, 1991.

Steven M. Greenberg, Hackensack, for plaintiff.

Robert J. McGuirl, Newark, for defendants (Priestley, McGuirl & Wachenfeld, Attorneys).

DONALD S. COBURN, J.S.C.

This civil action has come before me on defendants' motion pursuant to R. 4:23-5(a) to dismiss the complaint with prejudice based on plaintiff's failure to serve answers to interrogatories. In the past, applications of this nature, designed to conclude litigation for violation of rules governing discovery, were routinely denied. Absent the most extraordinary circumstances, trial courts were constrained to employ less severe sanctions. See, e.g., Johnson v. Mountainside Hosp., Resp. Disease Asso., 199 N.J.Super. 114, 488 A.2d 1029 (App.Div.1985).

In Aujero v. Cirelli, 110 N.J. 566, 542 A.2d 465 (1988), the Supreme Court dramatically elevated the importance of rule compliance, at least with respect to interrogatory practice, as the foundation for achieving substantial justice. Pursuant to that decision, and effective September 4, 1990, the Court adopted comprehensive amendments to R. 4:23-5(a) which, because of their potential consequences, are of great moment to the bar. R. 4:23-5(a) now provides as follows:

(a) Dismissal.

(1) Without Prejudice. If timely answers to interrogatories are not served and no motion for an extension has been made pursuant to R. 4:17-4(b), the party entitled to the answers may move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. The motion shall be supported by an affidavit reciting the facts of the delinquent party's default and further stating that the moving party is not in default in answering, pursuant to R. 4:17-4(a), the interrogatories served by the delinquent party. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice. The delinquent party may move for vacation of the dismissal or suppression order, provided the motion is supported by affidavit stating that fully responsive answers have been served and provided further the delinquent party pays costs in the amount of $100.00 to the Clerk of the Superior Court if the motion is made within 30 days after entry of the order of dismissal without prejudice and $300.00 if the motion is made thereafter.

(2) With Prejudice. If an order of dismissal or suppression without prejudice has been entered and not thereafter vacated, the party entitled to the answers or the court on its own motion may, after the expiration of 90 days from the date of the order, move, on notice, for an order of dismissal or suppression with prejudice. The motion shall be granted unless exceptional circumstances are demonstrated. The attorney for the delinquent party shall, not later than 5 days prior to the return date of the motion, file and serve an affidavit stating that the client has been notified of the pendency of the motion or that the attorney is unable, despite diligent inquiry, to determine the client's whereabouts. The notification to the client shall be in the form appearing as Appendix II-F to these rules, and the attorney's appearance on the return date of the motion shall be mandatory.

(3) General Requirements. All motions made pursuant to this rule shall be accompanied by an appropriate form of order, and all affidavits in support of relief shall include a certification of prior consultation with opposing counsel as required by R. 1:6-2(c). An order of dismissal or suppression shall be entered only in favor of the moving party.

The initial motion for dismissal without prejudice under subsection (1) may be successfully opposed by a showing that good cause exists for the granting of alternative relief such as compelling answers to interrogatories within a specified time, probably conditioned on an award of counsel fees pursuant to R. 4:23-1(c). This provides a critically important opportunity for the delinquent party's attorney because it will be far easier to meet the good cause standard than the subsection (2) standard of demonstrating "exceptional circumstances." In Ullmann v. Hartford Fire Ins. Co., 87 N.J.Super. 409, 209 A.2d 651 (App.Div.1965), the court had this to say regarding application of the concept of good cause:

It is impossible to lay down a universal definition of good cause ... or an all-inclusive and definitive catalogue of all of the circumstances to be considered by a court in determining whether there is good cause. Each case must be decided upon its own facts. However, as is said in 4 Moore's Federal Practice (2d ed.), p 34.08: "considerations of practical convenience should play the leading role in determining what constitutes good cause...." [414-415]

Since "the main objective is to compel the answers" (Pressler, Current N.J. Court Rules, Comment R. 4:23-5, at 917), it is to be expected that the alternative forms of relief will be readily given. That approach would certainly be in accord with considerations of practical convenience since after the initial dismissal without prejudice counsel for the delinquent party can obtain restoration without a showing of good cause by simply answering the interrogatories, filing a motion, and paying the appropriate costs set forth in the rule, provided such actions are taken within the 90 day period. In order to encourage response to the initial motion, it seems obvious that on a motion to restore brought within the 90 day period after a dismissal or suppression without prejudice is granted, counsel fees should be awarded as a matter of course to the non-delinquent party under R. 4:23-1(c) unless extraordinary circumstances are present.

Although the present motion deals with subsection (2) of the rule, it is worth emphasizing, in passing, two requirements of subsection (1); namely, that the supporting affidavit must state, inter alia, both that the moving party is not in default in answering the other side's interrogatories and that counsel have conferred pursuant to R. 1:6-2(c). Particularly because of the severity of subsection (2), courts should require strict adherence to subsection (1) which lays the groundwork for the "with prejudice" application.

Subsection (2) of R. 4:23-5(a) is complex and deserving of explication, particularly because some consequences of the rule are only implicit. For example, notwithstanding the provisions of R. 1:6-2(d) and (e) governing oral argument on civil motions, there can be no waiver of appearance on the "with...