Calculating the Available Discovery Period

Jatczyszyn v. Marcal Paper Mills, Inc., ___ N.J. Super. ___ (App. Div. 2011).  The key issue in this case involves how to calculate the discovery period permitted by the Court Rules in a circumstance where the case was removed to federal court by the defendant and was later remanded to the state court.  In an opinion by Judge Fuentes, who acknowledged at the outset the “outright tedium” of the lengthy recitation of procedural history that was required as a backdrop to the decision, the Appellate Division found that the Law Division had erred in granting summary judgment to defendant.  Instead, plaintiff should have been afforded additional time for discovery, since he did not get the full 450-day period permitted for a Track III case such as this one.

Judge Fuentes noted that a deferential abuse of discretion standard applies to decisions of trial level judges on requests for discovery extensions.  Despite that, the panel found error by the Law Division.  That court had begun to count the 450-day discovery period from the date that one of the defendants filed its answer in state court.  Another defendant, however, thereafter removed the case to federal court.  Once that happened, state court discovery rules and procedures were no longer operative.  Instead, federal procedures, including a ban on discovery until after an initial scheduling conference is held, took over. 

For whatever reason, no initial conference was ever held in the federal case.  Eventually, the federal court remanded the matter to state court.  The period of time that the case was in federal court, with no right to take discovery due to the non-occurrence of the initial conference (unlike what would have been the case in state court, where discovery can be taken immediately), should not have been counted in determining whether plaintiff had received the full 450-day discovery period.

This decision contains a very useful comparison of federal and state discovery procedures.  Despite the “outright tedium” of the convoluted procedural history, the opinion is sound and well worth reading.