Rymarkiewicz v. UMDNJ, ___ N.J. Super. ___ (App. Div. 2013). Our courts, especially the appellate courts, bend over backwards to avoid dismissing cases for a party’s failure to make discovery. This decision by Judge Fasciale, however, involved plaintiff’s egregious and repeated refusals to make discovery. Her attorney even warned her of the consequences of her actions. Yet, she persisted. Her case was first dismissed without prejudice, as required by Rule 4:23-5(a)(1), and then, when she had failed to do what was necessary, the matter was dismissed with prejudice.
Judge Fasciale’s opinion carefully recounts the history of the case and explains why dismissal with prejudice was appropriate. This case thus joins Abtrax Pharms., Inc. v. Elkins-Sinn, 139 N.J. 499 (1995), which is cited throughout Judge Fasciale’s opinion, as the rare instance in which dismissal with prejudice for failure to make discovery was upheld by an appellate court.