The New Jersey Appellate Division, in an unpublished opinion, Katramados v. First Transit Inc., (Appeal No. A-1947-17T1) (Decided January 24, 2019), invoked the ultimate sanction by dismissing a plaintiff’s complaint with prejudice after plaintiff’s repeated failures to comply with discovery. Plaintiff Lisa A. Katramados’s complaint alleged that she was injured while riding a bus driven by defendant Maxi Cosmey and owned by defendants First Transit, Inc., New Jersey Transit and New Jersey Transit Access Link.
Plaintiff initially failed to timely answer written discovery requests which resulted in Defendants’ moving to dismiss her complaint. An Order compelling production was entered but Plaintiff failed to fully respond necessitating another motion by Defendants to move to dismiss the complaint. Another motion was filed by Defendants to compel plaintiff’s IME and the moving papers contended that she had failed to appear for two previously scheduled IMEs.
An Order was entered compelling Plaintiff’s IME. Defense counsel contacted plaintiff’s counsel one day before the scheduled IME and was advised that the Order was deficient and requested a new notice. Defense counsel faxed the required information but plaintiff’s counsel advised that Plaintiff would not (and ultimately did not) attend the court-ordered IME.
Defendants’ counsel then moved to dismiss the complaint with prejudice or alternatively for an order compelling the IME. Plaintiff’s counsel acknowledged her client’s failure to appear for the first IME but claimed that inadequate notice had been provided for the second and third IMEs. Another Order compelling Plaintiff’s IME was entered and Plaintiff failed to appear for the IME.
Defense counsel moved to dismiss the complaint with prejudice due to Plaintiff’s failure to attend the IME. Plaintiff’s opposition claimed that she lacked any memory of the scheduled exam or her failure to attend. She blamed her failure to appear on side effects of medication. Katramados also argued that Defendants failed to follow a two-step procedure required by 4:23-5 which requires a party to first move for a dismissal without prejudice and then wait 60 days for her to cure the discovery deficiencies before moving to convert the dismissal without prejudice into with prejudice. The complaint was dismissed with prejudice. Plaintiff thereafter moved for reconsideration which was denied.
The Appellate Court rejected plaintiff’s argument that dismissal of her complaint with prejudice was an excessive sanction unwarranted by her conduct.It described the history of discovery in detail to demonstrate how a relatively simple negligence case can turn into a litigation nightmare that taxes judicial resources beyond what is necessary and required for a just determination of the merits of the complaint.If further noted that such delays occasioned by a party’s conduct result in inherent prejudice to the opposing party.Plaintiff’s history of noncompliance justified the ultimate sanction of dismissal with prejudice.
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