Opinion

Eil Investments, Lp v. Steven E. Angstreich

Court
New Jersey Superior Court Appellate Division
Filed
Sep 11, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 30.6%

requiring dismissal where defendant's disposal of records after statute of limitations had run prejudiced his case

How later courts described this case

  • requiring dismissal where defendant's disposal of records after statute of limitations had run prejudiced his case

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The opinion

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1631-22

EIL INVESTMENTS, LP,

LANDCOR HOLDINGS, LLC,

LINELIV LP,

LINELIV LLC,

HARTFORD PLAZA LTD. LP,

COOL TRAC FARMS LLC,

HIGH MEADOW FARMS, LLC,

IVELIN, LLC,

IVY TREE MEADOWS, LLC,

JIVA HOLDINGS LLC,

PINEDGE ASSOCIATES, LLC,

ABCON HOLDINGS LLC,

LENTIVA, LLC,

VIRELLIND HOLDINGS, LP,

VIRTIVA, LLC,

ELLEN SAMOST,

LINDA SAMOST,

IVA SAMOST, by her court

appointed guardian, and the

Iva Samost Revocable Trust,

for themselves, trading as and/or

on behalf of entities in which they

hold or held a partnership,

membership or equity ownership

interest including, without

limitation, and to the extent of

their interest in,

ABNOH, LLC,

BANKBRIDGE FARMS, LLC,

BOAN, LLC,

BREEZY TRAC FARMS, LLC,

COMSAM HOLDINGS, LLC,

COMSAM HOLDINGS, LP,

COOL MEADOW FARMS, LLC,

COUNTRY ROSE, LLC,

GREEN MEADOW FARMS, LLC,

HADDONBROOK ASSOCIATES,

LLC, HARTFORD SC, LLC,

HIGH STREAM FARMS, LLC,

HIVNOL, LLC,

HOLLOW BRIDGE ESTATES,

LLC, IVELIN (FL), LLC,

JANIV HOLDINGS, LP,

JOBNOL INV, LLC,

JOBNOL INV, LP,

JONAB INV, LP,

LAND & GROUND REALTY (FL),

LLC, LANDSPROP, LLC,

LENTIVA (FL), LLC,

LINELIV (FL), LLC,

LM ASSOCIATES I, LLC,

METCAM HOLDINGS, LLC,

MOORLAND ASSOCIATES, LLC,

NARAM GROUP, LP,

P&I ASSOCIATES, LLC,

PINEDGE ASSOCIATES (FL),

LLC, PRAYER PLACE, LLC,

ROSELIN BRIDGE, LLC,

ROYAL HILLS, LLC,

TURALIN, LLC,

WE BUY HOMES, LLC,

WERENTHOMES, LLC,

WYNCREST FARMS, LLC,

WYNCREST LAKES, LLC,

Plaintiffs-Appellants,

A-1631-22

2

v.

STEVEN E. ANGSTREICH,

WEIR AND PARTNERS, LLC,

JEFFREY BARON, and

BARON & BRENNAN, PA,

Defendants-Respondents,

and

MICHAEL J. WARD,

MICHAEL J. WARD, LLC,

DANIEL I. WARD,

DANIEL I. WARD, PC,

and ESTATE OF JOSEPH

SAMOST,

Defendants.

____________________________

Argued May 14, 2024 – Decided September 11, 2024

Before Judges Gooden Brown and Puglisi.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Docket No. L-0258-21.

Gregory A. Lomax argued the cause for appellants

(Lauletta Birnbaum, LLC, attorneys; Gregory A.

Lomax, of counsel and on the briefs).

Nicholas M. Centrella argued the cause for respondents

Steven E. Angstreich and Weir and Partners LLP (Clark

Hill PLC, attorneys; Nicholas M. Centrella, on the

brief).

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3

John L. Slimm argued the cause for respondents Jeffrey

Baron and Baron & Brennan, PA (Marshall Dennehey,

attorneys; John L. Slimm, on the brief).

PER CURIAM

Plaintiffs consist of numerous legal entities created as part of the estate

planning of Joseph and Iva Samost, both of whom are now deceased. Plaintiffs

appeal from several Law Division orders entered from September 12 through

December 22, 2022, denying their cross-motion to extend discovery; dismissing

claims against defendants Steven E. Angstreich and Weir and Partners, LLC (the

Weir defendants); and dismissing plaintiffs' amended complaint against

defendants Jeffrey Baron and Baron & Brennan, P.A. (the Baron defendants).1

The orders stem from protracted discovery relating to plaintiffs' underlying

complaint alleging multiple instances of negligence, breach of fiduciary duty,

1

Specifically, plaintiffs appeal from nine orders: (1) two separate September

12, 2022, orders denying plaintiffs' cross-motion to extend discovery, and

granting the Baron defendants' motion to compel more specific answers to

interrogatories and production of documents; (2) two separate October 25, 2022,

orders dismissing counts seven and eight of the amended complaint against the

Baron defendants and dismissing with prejudice plaintiffs' claims against the

Weir defendants; (3) a November 2, 2022, order granting the Baron defendants'

motion to compel more specific answers; and (4) four separate December 22,

2022, orders denying plaintiffs' cross-motion fixing a date for service of expert

reports, denying plaintiffs' motion for reconsideration, denying plaintiffs'

motion to compel discovery, and dismissing with prejudice plaintiffs' complaint

and amended complaint against the Baron defendants.

A-1631-22

4

conversion, and legal malpractice for defendants' part in a prior settlement as

well as defendants' management and restructuring of various family business

entities. We affirm.

I.

We focus on the procedural history of the case which is germane to the

issues on appeal. Over the course of Joseph's2 and Iva's married life, the couple

acquired a vast portfolio of real estate "held in the name of various trade names"

or "real estate companies that were owned by [] family members" in varying

percentages. Linda and Ellen Samost are the daughters of Joseph and Iva.

After settling litigation "involving various Samost family members," that

allocated the ownership interest of numerous "properties and businesses,"

Joseph, Iva, Linda, and Ellen remained majority interest holders of multiple

business entities—existing and newly formed—controlling their remaining

family assets. Joseph managed those assets with the assistance of various

professionals, among them defendants Angstreich of Weir and Partners, LL C,

Baron of Baron & Brennan, PA, Michael and Daniel Ward, and their respective

law firms.

2

Because of the common surname, we use first names to avoid confusion and

intend no disrespect.

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Defendants assisted Joseph with his estate planning, which included

"transferr[ing] most of his personal interests in the [family b]usinesses

to . . . Iva" and "minimiz[ing] the tax impact[] of particular transactions" while

ensuring "ownership interests were not diluted." Even as Joseph transferred

ownership interests to his wife and daughters, he continued to manage numerous

properties and business entities. Iva, Linda, and Ellen therefore relied on Joseph

and his professionals to manage and protect their financial affairs.

Christine Beikman, Joseph's then bookkeeper for the various businesses ,

was another one of Joseph's trusted associates. However, unbeknownst to the

family, for years, Beikman allegedly "execut[ed]" and "fil[ed]" numerous "false

deeds" and other "documents purporting to memorialize changes in the

ownership" of the family's businesses under the guise of Joseph's ailing health.

Beikman's acts "caused the transfer of over $20 million" in unaccounted assets.

Plaintiffs alleged that some of the family's assets were ultimately "converted" or

"transferred" to Iva's, Linda's, and Ellen's "detriment." In late 2014, Joseph and

Iva removed Beikman from her position and terminated their relationship with

her.

Beikman later pursued litigation for improper termination, naming Joseph,

Iva, and many of the businesses for which she had previously served as

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bookkeeper. Defendants separately represented Iva and the business entities in

conducting a forensic audit to determine the impact of Beikman's alleged

misconduct. Upon the recommendation of both the Weir and Baron defendants,

Iva and the business entities settled the Beikman litigation, resulting in "no

payments by Beikman, no accounting for the [questioned] transactions," and "no

recovery" of the unaccounted monies.

On January 27, 2021, plaintiffs filed the underlying eight-count complaint

against defendants that is the subject of this appeal. In the complaint, plaintiffs

alleged multiple instances of negligence, breach of fiduciary duty, conversion,

and legal malpractice in connection with the Beikman settlement and the

management and restructuring of the family's business entities. Plaintiffs sought

compensatory and punitive damages, among other relief.

Pursuant to Rules 4:5A-1 and -2, a "[t]rack [a]ssignment [n]otice" was

issued assigning the case to "[t]rack [three]" and setting the time for completion

of discovery at 450 days. On March 11, 2021, the Baron defendants moved to

dismiss plaintiffs' complaint pursuant to Rule 4:6-2(e) for "failure to state a

claim upon which relief can be granted." The Weir defendants filed a similar

motion as well as a motion for a more definite statement pursuant to Rule 4:6-

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4(a), permitting a party to "move for a more definite statement before

interposing a responsive pleading" to a "vague or ambiguous" pleading.

In an April 16, 2021, order, the motion judge granted, in part, the motions

to dismiss and dismissed without prejudice "[plaintiffs'] claim for punitive

damages." The judge also ordered plaintiffs to amend counts seven and eight of

the complaint "to plead[] with more specificity." 3 Nearly four months later, on

August 2, 2021, plaintiffs filed a first amended complaint containing similar

deficiencies in counts seven and eight as those in the original complaint. The

Baron defendants filed a contesting answer on August 18, 2021, and the Weir

defendants filed a "[p]artial [m]otion" to dismiss plaintiffs' first amended

complaint on August 23, 2021.

On September 15, 2021, following oral argument, the judge entered an

order granting in part the Weir defendants' "[p]artial [m]otion" to dismiss,

dismissing the punitive damages claim in plaintiffs' first amended complaint,

and again directing plaintiffs to amend counts seven and eight to "specify the

attorneys." Plaintiffs had used the phrase "Defendant Attorneys" without

specifying the attorneys to whom they were referring.

3

According to the order, a statement of reasons was set forth on the record at a

hearing of the same date but was not provided as part of the record on appeal.

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Prior to filing a second amended complaint, on March 16, 2022, plaintiffs

moved to dismiss their claims against defendants Michael J. Ward, Daniel I.

Ward, and their respective business entities (the Ward defendants) after reaching

an undisclosed settlement. In an April 25, 2022, order, the judge entered a

stipulation of dismissal to that effect as to the Ward defendants.

Additionally, on April 29, 2022, the judge entered an order directing

"plaintiffs . . . to provide fully responsive certified [a]nswers to

[i]nterrogatories, as well as their document production" by May 12, 2022. The

order stemmed from the Baron defendants' March 17, 2022, motion to dismiss

plaintiffs' complaint without prejudice in accordance with Rule 4:23-5(a)(1) for

failure to provide discovery.

On May 17, 2022, the parties were notified that "[a] trial [wa]s scheduled

for . . . August 22, 2022." The deadline to extend discovery was set to end on

June 8, 2022, pursuant to an earlier court notice dated April 2, 2022. On June

2, 2022, six days prior to the discovery end date, plaintiffs filed a letter request

with defendants' consent, pursuant to Rule 4:24-1(c), for a sixty-day extension

of the discovery deadline. As a result, the discovery deadline was extended to

August 7, 2022, and trial was rescheduled to October 17, 2022.

A-1631-22

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After plaintiffs missed the May 12, 2022, deadline to answer

interrogatories and produce documents, on June 13, 2022, the Baron defendants

moved to compel more specific answers to interrogatories and the production of

documents. Additionally, on June 24, 2022, the Weir defendants served

"[p]laintiffs with their [f]irst [s]et of [r]equests for [p]roduction" based on the

first amended complaint, inasmuch as plaintiffs had not yet filed a second

amended complaint.

In response, on July 28, 2022, plaintiffs cross-moved to extend discovery.

In a supporting certification, plaintiffs' counsel provided the following reasons

for seeking an extension of the discovery deadline:

a. This case was filed in the midst of the COVID[-19]

pandemic;

b. There was extensive motion practice that delayed the

filing of responsive pleadings and the framing of issues

as to which discovery needs to be taken;

c. Protracted settlement discussions with

certain . . . defendants ultimately resulted in a

settlement of claims against those parties, but delayed

discovery as to other parties;

d. Despite being promptly served, the Estate of Joseph

Samost has not filed an [a]nswer. It is unclear, as a

result of the [c]ourt's [o]rder on a motion to enter a

default against the Estate, whether the Estate may yet

be permitted to file an answer and assert defenses.

A-1631-22

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On July 29, 2022, nine days prior to the expiration of the first extended

discovery deadline, plaintiffs served their first sets of interrogatories and

document requests on the Weir and Baron defendants. On August 5, 2022,

plaintiffs filed a partial second amended complaint as to counts seven and eight

pursuant to the September 15, 2021, order. The only substantive change

between the first and the second amended complaints was plaintiffs' substitution

of "Angstreich" and "Weir LLP" for "Defendant Attorneys" in counts seven and

eight.

On August 10, 2022, the Weir defendants moved to dismiss the action

pursuant to Rule 4:37-2(a), governing dismissals for failure to comply with rules

or court orders, or Rule 4:23-5(a), governing dismissals for failure to provide

discovery. Thereafter, on August 12, 2022, plaintiffs sent written responses to

the Weir defendants' June 24, 2022, request for document production. After

several adjournments, the judge entered separate orders dated September 12,

2022, as to the Baron defendants' and plaintiffs' respective motions. In an

accompanying oral statement of reasons, the judge granted the Baron

defendants' motion to compel more specific answers to interrogatories and

documents, stating that plaintiffs "were asked to identify photographs, videos,

and electronic indications" but "ha[ve] not provided any [responses]."

A-1631-22

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In denying plaintiffs' cross-motion to extend discovery, the judge

explained:

[Plaintiffs] provide[d] multiple reasons why additional

discovery is needed. The case was filed in the midst of

the pandemic[,] but that part is over with.

The . . . extensive motion practice has delayed

responses. That[ i]s not a valid reason. [Negotiating

p]rotective settlements, again, is not a valid reason.

Plaintiffs were required to serve

discovery . . . pursuant to court rules within [forty]

days of August of 2021. Now, on the eve of trial

[p]laintiff[s are] attempting to extend discovery to have

this filed. It[ i]s too late. There[ i]s no reason why any

of these documents could[ not] have been sought

before. Therefore the [m]otion is denied.

On September 14, 2022, the Baron defendants moved to dismiss plaintiffs'

complaint as to counts seven and eight under Rule 4:6-2(e). On October 21,

2022, the judge heard oral argument on the Baron defendants' motion to dismiss

and the Weir defendants' motion to dismiss under Rules 4:37-2(a) and :23-5(a).

Plaintiffs conceded that "there [was] no claim being asserted against [the Baron

defendants] in [c]ounts [seven] or [eight]" but opposed dismissal "with

prejudice." Plaintiffs argued that while they were presently "not aware" of any

facts "that would support those claims," they should not be "precluded" by a

dismissal with prejudice from asserting those claims in the future. The Baron

defendants countered that plaintiffs' request was "inappropriate," because

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plaintiffs' amendments to counts seven and eight were filed "a year and seven

months" after the initial complaint and plaintiffs "ha[d] no expert report critical

of [the Baron defendants]" as required for a malpractice claim.

On the Weir defendants' motion to dismiss, the Weir defendants argued

that plaintiffs' complaint should be dismissed under Rule 4:37-2(a) because

plaintiffs' delayed compliance with the court's order was "wil[l]ful conduct," and

that conduct "harm[ed]" defendants because they "could[ not] file a proper

response to the [August 5, 2022, amended] pleading." Nonetheless, the Weir

defendants proffered that the court could "properly . . . resolve[]" the issue with

"a lesser sanction" by simply dismissing counts seven and eight "of the second

amended complaint."

Plaintiffs retorted that none of the amendments made in the August 5,

2022, amended pleading prohibited the Weir defendants from submitting

discovery requests sooner than June 24, 2022. In explaining the delay , plaintiffs'

counsel conceded "that [he had] been less than fully diligent in the prosecution

of th[e] case" due to the firm's internal case management, which he described as

"a complicated matter." Nonetheless, plaintiffs' counsel asked the judge for the

opportunity to "present [their] case on the merits by giving [them] some

additional time to complete the necessary discovery."

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On October 25, 2022, the judge entered two separate orders. In one order,

the judge granted the Weir defendants' motion to dismiss the complaint with

prejudice. In a second order, the judge granted the Baron defendants' motion to

dismiss counts seven and eight with prejudice.4 As to the Baron defendants, to

support his ruling, the judge relied on the fact that the matter was proceeding to

trial and plaintiffs' request to extend discovery had been denied on September

12, 2022.

As to the Weir defendants, the judge explained that plaintiffs' first

amended complaint—filed August 2, 2021, in response to the court's April 16,

2021, order—"contained similar deficiencies in [c]ount[s] seven and eight as . . .

those in the original complaint." The judge continued that despite being ordered

on September 15, 2021, "to amend [c]ount[s] seven and eight to specify the

attorneys involved in these claims,"

[a] year passed after the September [2021] order before

[p]laintiffs filed their second amended complaint in

August of 2022.

As a result . . . . [t]he Weir [d]efendants have not

yet filed an answer. The Weir [d]efendants have[ not]

conducted any discovery. No one has been deposed by

any party. The delay has affected the case, specifically,

[p]laintiff Iv[a] Samost . . . described as [a] key

4

In a third order, the judge entered default against the Estate of Joseph Samost

on plaintiffs' motion.

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[p]laintiff [and] alleged witness, passed away [in]

March 2022. So there will be an inability to seek any

information directly from that decedent.

Citing Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 345 (1984) and

Rule 4:37-2(a), the judge determined that dismissal with prejudice as to the Weir

defendants was warranted. In support, the judge pointed to the September 12,

2022, order denying plaintiffs' recent request to extend discovery. The judge

also recounted the fact that the case was over "510 days" old and the failure to

complete discovery was attributable to plaintiffs. Thus, the judge posited that

"to deny the [Weir defendants'] motion . . . would really in essence open

discovery" and "improperly reverse" the September 12, 2022, order, an

untenable outcome in the judge's opinion.

Instead,

[t]he [c]ourt [found] that . . . [p]laintiffs

improperly did not comply with the September [15,

2021,] order, and [by waiting to] fil[e] the amended

complaint for nearly a year, the Weir [d]efendants had

been unable to file an answer, cross-claim or counter-

claim without sufficiently definite pleading[s] from . . .

[p]laintiffs. And for the reasons stated, and really

enforcement of the discovery rules in [an] attempt to

have the matter ready for trial, I believe that there has

been sufficient time not acted on. And while I do[ no]t

have . . . an extension of discovery request before me

such that I need to consider that specifically, that aspect

was really closed out in the law of the case . . . [by the

September 12, 2022, order] which denie[d] extension

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of discovery and really makes it impossible to proceed

against the[] . . . Weir [d]efendants.

On November 2, 2022, another order was entered granting the Baron

defendants' motion to compel more specific answers to interrogatories and the

corresponding documents. On November 17, 2022, the Baron defendants again

moved for outstanding discovery and to dismiss the complaint with prejudice.

On November 28, 2022, plaintiffs moved for reconsideration of the October 25,

2022, order dismissing all claims against the Weir defendants. Plaintiffs also

moved to extend discovery and to compel the Baron defendants' responses to

plaintiffs' July 29, 2022, demand for written discovery.

During oral argument on the motions, conducted on December 16, 2022,

plaintiffs argued for the first time that the original discovery deadline was

miscalculated. According to plaintiffs, the initial discovery end date should

have been August 3, 2022. Based on the miscalculation, plaintiffs argued that

(1) the temporal reasons supporting the Weir defendants' motion to dismiss with

prejudice were incorrect; (2) the reasons for the September 12, 2022, order

denying an extension of discovery no longer applied; and (3) "discovery was

timely under the proper calculation of the discovery end date, because it was

returnable . . . within the period of discovery."

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Plaintiffs also reiterated that the COVID-19 "shutdowns" and related

Supreme Court omnibus orders created "a general sense of relaxation of some

of those deadlines." Further, according to plaintiffs, "our rules are structured to

provide [a] two-step process where if there[ i]s a non-compliant party, there[ i]s

an order of dismissal without prejudice, and then an opportunity to reinstate if

that delinquency is cured."

On the Baron defendants' motion to dismiss, defense counsel argued that

on "the third time around," "plaintiffs do not have a cause of action [] because

they do[ not] have expert reports." Defense counsel argued that their motion to

dismiss should be granted with prejudice because plaintiffs (1) failed to comply

with orders requiring "answer[s] to interrogatories," (2) failed to comply with

orders directing "more specific answers to interrogatories," and (3) failed to

provide "expert reports" to support their legal malpractice claims.

In separate orders dated December 22, 2022, the judge denied plaintiffs'

motions for reconsideration and to compel discovery and granted the Baron

defendants' motion to dismiss with prejudice. In an oral opinion placed on the

record on December 22, 2022, the judge extensively reviewed the procedural

history and underlying facts alleged in plaintiffs' complaint. The judge "f[ound]

based on the circumstances [that] reconsideration and reversal [were] not

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warranted" because there was "continuing dilatory conduct relative to

conducting the discovery in the matter" and "no indication that the dilatory

conduct by plaintiffs [would] not continue."

The judge explained:

This is a complex, multi-party legal malpractice case

and very little has been exchanged or shown to establish

the basis for negligence on the part of these two

remaining attorneys and law firms.

. . . [P]laintiff[s'] failure to produce an expert calls into

question the ability of . . . plaintiffs to maintain any of

their complex causes of action in the matter and further

supports dismissal with prejudice as the proper remedy.

As to the Baron defendants' motion to dismiss, the judge explained that

plaintiffs "b[ore] the burden of proving all the[] elements [of legal malpractice]"

but could not "at this point provide or prevail" on its claims "without . . . an

expert report." After reviewing the governing rules and legal principles, the

judge further expounded:

During the course of the almost two years[,]

plaintiffs had every opportunity to provide answers to

interrogatories and submit an expert report. They did[

not]. Consistently . . . defendants have been required

to file motions [for] more specific answers to

interrogatories. Court orders were entered as noted

compelling more specific answers to interrogatories.

. . . . Again[,] plaintiffs were required to respond to

interrogatories. They did not.

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The judge "acknowledge[d] that dismissal with prejudice [was]

disfavored." However, given plaintiffs' "failure to really engage in discovery

and failure to comply with court orders," the judge believed there was no other

appropriate recourse. In the judge's "opinion," plaintiffs' "dilatory" conduct had

"really . . . been egregious" and "so much time went by." In addition, according

to the judge, "several [j]udges attempted to assist by directing the parties by

court order with absolutely no effect on . . . plaintiffs."

Although the judge also denied plaintiffs' discovery motions as moot, the

judge commented that Rule 4:24-1(c) prohibited extension of the discovery

period after a trial date had been fixed unless exceptional circumstances were

shown. Because a trial date had been fixed, the judge considered whether

plaintiffs had made the requisite showing and determined that they had not

because plaintiffs' counsel had not been "diligent in pursuing discovery" and had

not satisfactorily explained why discovery had not been completed. According

to the judge, the discovery sought, particularly an expert report, was essential to

the case, plaintiffs' request for an extension of the discovery deadline was late,

and the circumstances presented were not beyond the control of plaintiffs'

attorney. This appeal followed.

On appeal, plaintiffs raise the following points for our consideration:

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I. THE TRIAL COURT ERRED IN DENYING

PLAINTIFFS' DISCOVERY-EXTENSION

MOTION.

A. The Court Should Review This Issue De

Novo.

B. The Trial Court Applied The Wrong Standard

In Denying Plaintiffs' Cross-Motion To Extend

Discovery.

C. Plaintiffs Established Good Cause For A

Further Extension Of Discovery.

D. The Trial Court Abused Its Discretion In

Refusing To Grant Plaintiffs' Discovery

Extension.

E. The Trial Court Erred When It Entered The

October 21, 2022[,] Order Dismissing Counts

[Seven] And [Eight] Against The Baron

Defendants.

F. The Court Should Reverse The Trial Court's

Order Dated December 22, 2022[,] Denying

Plaintiffs' Motion To Compel As Moot.

II. THE TRIAL COURT ERRED IN DISMISSING

THE AMENDED COMPLAINT AGAINST THE

BARON AND WEIR DEFENDANTS.

A. The Trial Court Erred In Dismissing The

Amended Complaint Against The Baron

Defendants.

1. The Trial Court Abused Its Discretion

In Dismissing The Amended Complaint

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Against The Baron Defendants Under

[Rule] 4:23-2(b)(3).

2. The Trial Court's Dismissal of Plaintiffs'

Claims Against The Baron Defendants

Deprived Plaintiffs Of Their Procedural

Rights Under [Rule] 4:46-2.

3. The Trial Court Erred In Entering The

Compel Order Because It Mistakenly

Found That The Baron Defendants' Motion

To Compel Was Unopposed.

B. The Trial Court Abused Its Discretion

In Dismissing The Amended Complaint

Against The Weir Defendants Under

[Rule] 4:37-2(a).

II.

"An appellate court applies 'an abuse of discretion standard to decisions

made by [the] trial courts relating to matters of discovery.'" C.A. by Applegrad

v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in original) (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). The

same standard applies to a trial court's dismissal of a complaint for discovery

violations, Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995);

Woodward-Clyde Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464,

475 (1987), and a denial of a motion for reconsideration, Branch v. Cream-O-

Land Dairy, 244 N.J. 567, 582 (2021).

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An abuse of discretion "arises when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002) (quoting Achacoso–Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.

1985)). Thus, "appellate courts are not to intervene . . . absent an abuse of

discretion or a judge's misunderstanding or misapplication of the law." Cap.

Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017)

(citing Pomerantz, 207 N.J. at 371).

On the other hand, "we review legal determinations based on an

interpretation of our court rules de novo." Occhifinto v. Olivo Constr. Co., 221

N.J. 443, 453 (2015) (citing State ex rel. A.B., 219 N.J. 542, 554-55 (2014)).

"In that regard, '[w]e apply the same canons of construction to a court rule that

we apply to a statute.'" Hollywood Café Diner, Inc. v. Jaffee, 473 N.J. Super.

210, 217 (App. Div. 2022) (quoting Cadre v. Proassurance Cas. Co., 468 N.J.

Super. 246, 263 (App. Div. 2021)).

In Point I, plaintiffs challenge the legal standard employed by the judge

in the September 12, 2022, order denying their motion to extend discovery.

Plaintiffs contend their motion to extend discovery was similar to the motion in

Hollywood Café. Because the judge prematurely scheduled a trial date before

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the conclusion of discovery, plaintiffs assert their motion should have been

reviewed under the good cause standard rather than the exceptional

circumstances standard. Plaintiffs posit they met the good cause standard under

Hollywood Café, and Leitner v. Toms River Regional Schools, 392 N.J. Super.

80, 92-93 (App. Div. 2007), and even if the exceptional circumstances standard

applied, they met that standard as well.

In Hollywood Café, we explained:

Rule 4:24-1(c) permits the parties to extend

discovery for sixty days "prior to the expiration of the

discovery period" by written consent. If a longer

extension is sought, "a motion for relief shall be filed

. . . and made returnable prior to the conclusion of the

applicable discovery period." Ibid. "[I]f good cause is

otherwise shown, the court shall enter an order

extending discovery." Ibid. (emphasis [omitted]).

However, "[n]o extension of the discovery period may

be permitted after an arbitration or trial date is fixed,

unless exceptional circumstances are shown." Ibid.

(emphasis [omitted]).

[Hollywood Café, 473 N.J. Super. at 217 (alterations in

original)].

We identified the following non-exhaustive list of factors courts may

consider in determining whether good cause to extend discovery exists:

(1) the movant's reasons for the requested extension of

discovery;

(2) the movant's diligence in earlier pursuing discovery;

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(3) the type and nature of the case, including any unique

factual issues which may give rise to discovery

problems;

(4) any prejudice which would inure to the individual

movant if an extension is denied;

(5) whether granting the application would be

consistent with the goals and aims of "Best Practices";

(6) the age of the case and whether an arbitration date

or trial date has been established;

(7) the type and extent of discovery that remains to be

completed;

(8) any prejudice which may inure to the non-moving

party if an extension is granted; and

(9) what motions have been heard and decided by the

court to date.

[Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424

N.J. Super. 448, 480 (App. Div. 2012) (quoting Tynes

ex rel. Harris v. St. Peter’s Univ. Med. Ctr., 408 N.J.

Super. 159, 169-70 (App. Div. 2009)).]

In contrast, under the "exceptional circumstances" standard, a movant

"must satisfy four inquiries" by demonstrating:

(1) why discovery has not been completed within time

and counsel's diligence in pursuing discovery during

that time; (2) the additional discovery or disclosure

sought is essential; (3) an explanation for counsel's

failure to request an extension of the time for discovery

within the original time period; and (4) the

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24

circumstances presented were clearly beyond the

control of the attorney and litigant seeking the

extension of time.

[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App.

Div. 2005).]

Clearly, "[t]he good cause standard is 'more lenient' and '"flexible . . ." without

a fixed or definite meaning.'" Hollywood Café, 473 N.J. Super. at 217 (quoting

Bldg. Materials Corp. of Am., 424 N.J. Super. at 480).

In Hollywood Café, we considered which standard applied when a court

notice fixes an arbitration or trial date before discovery ends, as occurred here.

473 N.J. Super. at 219. There, the plaintiff requested a discovery extension by

motion in a timely manner pursuant to Rule 4:24-1(c). Id. at 214. We held that

"when the [trial] court chooses to send out arbitration and trial notices during

the discovery period, judges evaluating a timely motion to extend discovery may

not utilize the 'exceptional circumstances' standard, but rather the judge 'shall

enter an order extending discovery' upon a showing of 'good cause.'" Id. at 220

(quoting R. 4:24-1(c)).

In Leitner, we examined whether the plaintiffs satisfied the good cause

standard in their motion to extend discovery that was returnable before the

discovery end-date. 392 N.J. Super. at 87. There, the "[p]laintiffs' counsel did

not propound any interrogatories, document requests, or send out any notices to

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25

depose." Id. at 88. Additionally, "[p]laintiffs' counsel neither retained nor

identified any expert witnesses" despite "alleging violations of the Law Against

Discrimination ('LAD') and the Americans with Disabilities Act ('ADA')" in the

complaint. Id. at 82, 89. Indeed, we described plaintiffs' counsel's discovery

efforts as "anemic, vacuous and delusory." Id. at 88.

In contrast, the defendant's "counsel propounded uniform interrogatories

and one page of supplementary interrogatories," and deposed plaintiffs. Ibid.

Nonetheless, although the defendant "never received the answers to the

supplementary interrogatories propounded[,]" it never "move[d] to dismiss

plaintiffs' complaint for failure to answer same pursuant to [Rule] 4:23-5" nor

"asked the court for a case management conference." Id. at 88-89. On balance,

we determined that although "the case was over 450 days old," id. at 92,

given the purpose and goals of Best Practices, the lack

of prejudice to [the defendant], the extreme prejudice

to the individual plaintiffs, the lack of a trial date and

the need for the public to have confidence that disputes

will be resolved on the merits whenever possible, the

trial judge mistakenly exercised his discretion by

refusing to extend the discovery date.

[Id. at 93.]

Accordingly, we reversed and remanded the matter "for the entry of an order

extending the discovery end[]date." Id. at 94.

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26

Here, the discovery end date is disputed. Plaintiffs assert that the original

discovery end date was miscalculated and should have been August 3, 2022,

instead of June 8, 2022. Plaintiffs assert that their motion was governed by a

good cause standard which they established by demonstrating that (1) the

complaint was filed in the waning days of the COVID-19 pandemic; (2) the

denial caused them extreme prejudice; (3) the Weir and Baron defendants faced

no prejudice from extending discovery; (4) the trial court miscalculated the

discovery end date; and (5) various other obstacles creating discovery problems,

including plaintiffs' counsel "winding down" his practice, settlement discussions

with the Ward defendants, the Estate's default, and needing more time for

discovery at the time of the motion.

Although the judge did not specify in his September 12, 2022, oral opinion

the standard used in rejecting plaintiffs' cross-motion to extend discovery, the

judge's reasoning supports denial of an extension under the good cause standard.

Moreover, plaintiffs never moved for reconsideration of the September 12, 2022,

order denying plaintiffs' cross-motion to extend discovery. Instead, the only

order raised in plaintiffs' November 28, 2022, motion for reconsideration was

the October 25, 2022, order dismissing claims as to the Weir defendants.

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27

Further, plaintiffs' reliance on Hollywood Café and Leitner to support

their argument that good cause was shown for an extension is misplaced. Unlike

here, in Hollywood Café, we noted that "the parties served paper discovery

demands on each other" and participated unsuccessfully in court-ordered

mediation all in the immediate aftermath of the COVID-19 pandemic and our

Supreme Court's first of eleven "Omnibus" orders. 473 N.J. Super. at 220 -21,

n.3. Further, unlike Leitner, here, defendants engaged in extensive motion

practice to compel answers to interrogatories and production of documents, for

more definite claims in the complaint, and to dismiss plaintiffs' claims against

them in whole or in part. Additionally, prejudice to defendants is evident in the

record before us.

Plaintiffs' admitted lack of diligence continued for over a year and seven

months, and, as such, plaintiffs face little prejudice that was not caused by their

own dilatory conduct. As we stated in Leitner,

Best Practices was enacted to "counteract an

unfortunate and increasingly dilatory, casual and

desultory approach by some members of the bar to their

litigation responsibilities." [Tucci v. Tropicana Casino

& Resort, Inc., 364 N.J. Super. 48, 53 (App. Div.

2003)]. The Best Practices guidelines, however, are not

inflexible, unbending dictates, but vest significant

discretion with the trial courts to determine on a case-

by-case basis if a discovery period should be extended

and, if so, what deadlines and conditions should be set.

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[Leitner, 392 N.J. Super. at 90.]

Here, we discern no abuse of discretion in the judge's careful exercise of his

broad discretion.

In Point II, plaintiffs contend the judge erroneously dismissed its claims

against the Weir defendants under Rule 4:37-2(a), and against the Baron

defendants under Rule 4:23-2(b)(3).

When a party fails to comply with a court's order, "[t]he court

must . . . carefully weigh what sanction is the appropriate one, choosing the

approach that imposes a sanction consistent with fundamental fairness to both

parties." Williams v. Am. Auto Logistics, 226 N.J. 117, 125 (2016) (omission

in original) (quoting Robertet Flavors, Inc. v. Tri-Form Constr., Inc., 203 N.J.

252, 282-83 (2010)). In choosing the appropriate sanction, the trial court must

consider "[t]he varying levels of culpability of delinquent parties." Georgis v.

Scarpa, 226 N.J. Super. 244, 251 (App. Div. 1988). "The extent to which [one

party] has impaired [the other's] case may guide the court in determining

whether less severe sanctions will suffice." Williams, 226 N.J. at 125

(alterations in original) (quoting Gonzalez v. Safe & Sound Sec. Corp., 185 N.J.

100, 116 (2005)).

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29

Whether dismissal is appropriate requires courts to "assess the facts,

including the willfulness of the violation, the ability of plaintiff to produce the

[evidence], the proximity of trial, and prejudice to the adversary." Casinelli v.

Manglapus, 181 N.J. 354, 365 (2004). The "ultimate sanction of dismissal" must

be used "only sparingly." Abtrax Pharms., 139 N.J. at 514 (quoting Zaccardi v.

Becker, 88 N.J. 245, 253 (1982)). "If a lesser sanction than dismissal suffices

to erase the prejudice to the non-delinquent party, dismissal of the complaint is

not appropriate and constitutes an abuse of discretion." Georgis, 226 N.J. Super.

at 251. "But when the plaintiff's disregard of a court order impairs 'the

defendant's ability to present a defense on the merits,' the defendant will be

deemed to have suffered irreparable prejudice." Gonzalez, 185 N.J. at 116

(quoting State v. One 1986 Subaru, 120 N.J. 310, 315 (1990)); see also Moschou

v. DeRosa, 192 N.J. Super. 463, 466-67 (App. Div. 1984) (requiring dismissal

where defendant's disposal of records after statute of limitations had run

prejudiced his case).

As to the Weir defendants, Rule 4:37-2(a) provides:

For failure of the plaintiff to cause a summons to issue

within [fifteen] days from the date of the Track

Assignment Notice or to comply with these rules or any

order of court, the court in its discretion may on

defendant's motion dismiss an action or any claim

against the defendant. Such a dismissal shall be

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30

without prejudice unless otherwise specified in the

order.

In Gonzalez, our Supreme Court examined how a party's course of conduct

"enter[s] into the calculus in determining the appropriate sanction." 185 N.J. at

116.

For example, in Merck & Co. v. Biorganic

Laboratories, Inc., the Appellate Division affirmed the

trial court's entry of a default against defendants who

engaged in a "deliberate course of conduct" that

"frustrate[d] plaintiff's discovery." 82 N.J. Super. 86,

88, 91 (App. Div. 1964). In that case, the plaintiff

alleged that the defendants had wrongly acquired trade

secrets. Id. at 88. During discovery, the trial court

ordered the defendants to produce important corporate

documents for the plaintiff's inspection. Id. at 88-89.

Despite knowledge of that order, the defendants

destroyed the documents sought by the plaintiff. Ibid.

Judge (later Justice) Sullivan, writing for the Appellate

Division, "recognize[d] the trial court's inherent power"

to enter a default judgment in light of the defendant's

"outrageous conduct," and concluded that "[t]o hold

otherwise would permit defendants effectively to

frustrate the prosecution of plaintiff's cause of action."

Id. at 91.

[Gonzalez, 185 N.J. at 116.]

Applying those principles, the Gonzalez Court held that the plaintiff's

refusal "to take the oath and provide testimony" in violation of the trial court's

order, despite being "uniquely qualified to provide testimony concerning the

whereabouts or absence of" an individual critical to the claims brought , was

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31

"flagrant and without justification." Id. at 116-17, 119. The Court explained

that plaintiff's conduct was "an affront to the court's authority and so

fundamentally unfair to [the defendant] that plaintiff should have been advised

that he was facing the immediate dismissal of his cause of action." Id. at 119.

"After such a warning, if plaintiff continued to defy the court's order, then the

court should have dismissed plaintiff's case" and to do otherwise was an abuse

of the court's discretion. Ibid.

However, in Crispin, the Court held that the plaintiff's delay in serving

summonses contrary to our court rules did not rise to the level of conduct

requiring dismissal of the complaint with prejudice despite the defendants' claim

of prejudice. 96 N.J. at 341, 345-46. The Court acknowledged:

Competing policies are involved in disputes over

procedural questions such as this. The defendant's right

to have the plaintiff comply with procedural rules

conflicts with the plaintiff's right to an adjudication of

the controversy on the merits. Crews v. Garmoney, 141

N.J. Super. 93, 96 (App. Div. 1976). A range of

sanctions is available when a party violates a court rule.

Since dismissal with prejudice is the ultimate sanction,

it will normally be ordered only when no lesser sanction

will erase the prejudice suffered by the non-delinquent

party. See Gnapinsky v. Goldyn, 23 N.J. 243, 248

(1957); Schlosser v. Kragen, 111 N.J. Super. 337, 346

(Law Div. 1970).

We recognize that delay that so prejudices a

defendant that his ability to defend the case is seriously

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32

impaired will call for dismissal with prejudice. See

[Moschou, 192 N.J. Super. at 466-67] (dismissal

required where defendant's disposal of records after

statute of limitations had run prejudiced his case). But

the prejudice that defendants claim is primarily lack of

joinder . . . . There is no proof that any evidence is less

available now than . . . when the . . . litigation took

place.

[Crispin, 96 N.J. at 345.]

Here, defendants challenged plaintiffs' inaction early and often. Given the

extent of plaintiffs' disregard of the trial court's orders directing them to file an

amended complaint and respond to defendants' discovery demands, as well as

counsel's concession "that [he had] been less than fully diligent in the

prosecution of th[e] case" due to the firm's internal case management, we discern

no abuse of discretion in the dismissal of plaintiffs' complaint against the Weir

defendants with prejudice.

As to the Baron defendants, Rule 4:23-2(b)(3) provides:

If a party . . . or authorized agent of a party . . . fails to

obey an order to provide or permit discovery, including

an order made under [Rule] 4:23-1, the court in which

the action is pending may make such orders in regard

to the failure as are just, and among others the

following:

....

(3) An order striking out pleadings or parts

thereof, or staying further proceedings

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33

until the order is obeyed, or dismissing the

action or proceeding or any part thereof

with or without prejudice, or rendering a

judgment by default against the

disobedient party . . . .

The analysis is similar to a Rule 4:37-2(a) motion and the same result

obtains. Critically, the Baron defendants repeatedly moved to compel more

specific answers from plaintiffs. As early as April 29, 2022, plaintiffs were

directed by the court "to provide fully responsive certified [a]nswers" and

provide requested documents, particularly regarding plaintiffs' expected expert

witness as required to support their malpractice claims. See, e.g., Buchanan v.

Leonard, 428 N.J. Super. 277, 288-89 (App. Div. 2012) (citations omitted)

(recognizing generally expert testimony is necessary to sustain a legal

malpractice claim). Plaintiffs continued to provide unsatisfactory answers and

were again ordered to provide more specific answers in a September 12, 2022,

order. Ultimately, plaintiffs conceded at the October 21, 2022, oral argument

that "there [was] no claim being asserted against [the Baron defendants] in

[c]ounts [seven] or [eight]" of their complaint. Nonetheless, plaintiffs continued

to argue against dismissal with prejudice to leave open the possibility of adding

the Baron defendants in the future.

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34

The judge's reasons for dismissing with prejudice are amply supported by

the record and largely undisputed. Given the prejudice faced by the Baron

defendants, plaintiffs' lack of compliance with orders, and plaintiffs' continuous

inability to evince meritorious claims against the remaining named defendants

during the discovery process, we discern no abuse of discretion in the dismissal

of plaintiffs' complaint against the Baron defendants with prejudice.

Affirmed.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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