Judge Fuentes Warns: When Seeking Dismissal With Prejudice as a Discovery Sanction, “Follow the Procedural Safeguards” of Rule 4:23-5

Thabo v. Z Transportation, 452 N.J. Super. 359 (App. Div. 2017).  Under Rule 4:23-5, failure to make discovery can, in certain circumstances, result in dismissal of a complaint with prejudice.  But Rule 4:23-5 contains “strict notice requirements”  that embody “due process protections,” as Judge Fuentes said in his opinion today in this appeal.  In this breach of contract case, where the Law Division granted dismissal with prejudice, the panel criticized counsel and the judge for failing “to follow the procedural safeguards codified in Rule 4:23-5.”

This was a fact-intensive decision, as rulings on discovery matters often are.  This post will gloss over most of the details, except to note, as Judge Fuentes highlighted, that “defendant received the outstanding discovery which formed the basis of the sanction a month before the judge dismissed plaintiff’s complaint with prejudice.”  Thus, for that reason alone, defense counsel should not have pursued a motion for discovery sanctions and the Law Division should not have granted dismissal with prejudice.

But there were other reasons as well.  Among other things, defense counsel’s motion for dismissal “failed to include a statement indicating that defendant, as the moving party, was not in default of any discovery obligations owed to plaintiff, as required by Rule 4:23-5(a)(1).”  Defendant was in fact in default of discovery obligations itself.  Moreover, defendant’s counsel stated that he had “orally conferred, or has made a good faith effort to orally confer with the opposing party to no avail,” but failed to “specifically describe the type of good faith efforts he made, as required by Rule 1:6-2(c).”  Finally, defense counsel did not certify that plaintiff had been served with the motion.  The only reference to serving plaintiff appeared in a cover letter that referred to forwarding the motion “to my adversaries,” an “incongruous reference,” Judge Fuentes noted, since there was only one adversary.  The panel concluded that the cover letter was merely a form letter.

Those errors by defense counsel all offer lessons to practitioners.  Any of them, separately or together, were grounds for denial of defendant’s motion for sanctions.  If dismissal with prejudice is being sought as a sanction for a discovery violation, all “i’s” must be dotted and all “t’s” crossed in accordance with the Court Rules.

Judge Fuentes applied the abuse of discretion standard and reversed the dismissal with prejudice.  “[T]he flagrant disregard of the procedural requirements of Rule 4:23-5 satisfie[d] this standard of review.”  Judge Fuentes then concluded by recapping the procedure that must be followed in order to pursue dismissal under Rule 4:23-5, focusing on both the general rules there and the special principles applicable to pro se parties, since plaintiff filed this case pro se.  That section of the opinion is a good guide for those who may seek such discovery sanctions in the future.