RHONDA GESCHKE v. HARRAH ENTERTAINMENT INC BALLY PARK PLACE INC BALLY ATLANTIC CITY THE SPA AT BALLY QADIR MUHAMMAD (2011)

Plaintiff Rhonda Geschke appeals from an order dismissing with prejudice her complaint against defendants Bally's Park Place, Inc. (Bally's), and Qadir Muhammad (Muhammad), a Bally's employee.   Plaintiff alleged that Muhammad engaged in misconduct while giving her a massage at the Spa at Bally's, and she sought compensatory and punitive damages.   After reviewing the record in light of the applicable law, we reverse and remand.

During voir dire on August 24, 2009, one prospective juror, who had been excused, appeared to touch plaintiff on the shoulder and whisper something in her ear as she exited the courtroom.   Later, the court asked the remaining prospective jurors whether they had “any opinions about ․ emotional injuries, depression or post-traumatic stress syndrome,” and one responded that his sister had “died from” depression.   At sidebar, he reiterated that depression “killed [his] sister” and stated:  “I got [an] opinion on it, I don't know whether it's good or bad.”   Nevertheless, the juror was not asked any further questions and was not excused.

Shortly thereafter, a court aide advised the judge outside the presence of the jury that:  “The plaintiff just said under her breath to [that juror], I'm sorry about your sister.   I read her lips.”   The court then asked to see counsel and Muhammad at sidebar and instructed plaintiff's counsel as follows:

I just saw [a juror] nodding his head at [plaintiff].   My court aide tells me that she appeared to say to him something like, I'm sorry about your sister.   I want you to ․ ask her if she said that.   And if so, I'm going to excuse that juror and you tell [plaintiff] that if there is any further attempt to communicate with these jurors I'm going to mistry the case immediately.   I want to hear whether my court aide's information was accurate, she appeared to have mouthed that.   And maybe it was misunderstood, but I want to know․

After counsel conferred with plaintiff, the judge held another sidebar.   Counsel acknowledged that plaintiff “did make some expression of sympathy” and “mouthed ․ [s]orry for your sister.”   Bally's moved for a mistrial, arguing that plaintiff had interacted improperly with a potential juror.   The court granted the application, reasoning as follows:

There's no doubt in my mind that at least four others of the seated jurors had to have noticed [the words mouthed], and there's no doubt in my mind that at least the people who were seated in the row immediately behind plaintiff's counsel table had to notice it as well.

․

I'm just going to assume that it was all inadvertent, that [plaintiff's counsel] did not see it because I'm sure he would have corrected it if it occurred.   There's no doubt in my mind that [the juror] was very emotional about the loss of his sister, and it's understandable that somebody might want to express their condolences for that, but it cannot be a litigant in a case when ․ the other jurors are going to sit in judgment of that case.   So I grant[ ] a mistrial.

On September 25, 2009, the court denied Bally's motion for sanctions.   In an accompanying memorandum, it explained:  “This is not a case where an attorney's conduct was contumacious or a litigant's conduct was motivated by bad faith.”

A second round of jury selection began on January 4, 2010, before a different judge.   One prospective juror was excused based on her employer's business relationship with local casinos.   However, before leaving the courthouse, she informed the jury manager that plaintiff had spoken to her and other prospective jurors.   Outside the presence of the jury pool, the court advised counsel as follows:

I've been informed ․ by [the jury manager] that ․ the plaintiff had direct contact with [a juror] who has since been dismissed, that [the juror] related to him that she was having a conversation with [plaintiff] - not about the case but about pets and dogs - and that the conversation also included a couple of other jurors․  I'm also concerned ․ in light of the fact that this matter was mistried due to the plaintiff's conduct [in August 2009].

Counsel for Bally's then moved to dismiss plaintiff's complaint with prejudice, insisting that her “conduct can't be tolerated by the Court.”   He also claimed that a mistrial would be inadequate “for a variety of reasons,” particularly because Muhammad had traveled from his home in Texas for both trial dates “at great ․ personal expense.”   Plaintiff's counsel responded that the allegations were “hearsay” and urged the court “to make a record” before taking any action.   He also advised the court that plaintiff did not “see any badges on anybody that she spoke to” and that plaintiff was willing to “take the stand.”

The court ultimately agreed with plaintiff that additional information was needed before the motion to dismiss could be decided:

I think we've got to look and analyze whether, in fact, those one or two [jurors] have the potential of being - I'm going to use the word influenced but maybe that's a little too strong - befriended by the plaintiff․  I think at least there's grounds for a mistrial.

[To determine w]hether the onerous things that occur from a mistrial are going to flow, I think we need a hearing․  I have to make [a decision] on at least hearing it from the witness's mouth, both out of the plaintiff and that of [the juror] and[/]or any of her other co-jurors that may have been there at the time.

․

So the mistrial is declared․  [Counsel for Bally's], I guess I'll leave it up to you procedurally how you want to proceed, whether you want to schedule a hearing.   Talk to [the juror], decide whether you've got a basis to ․ move forward with the relief that you're requesting in which case talk to [plaintiff's counsel] and Mr. Muhammad and I'll schedule a hearing on that issue.

On March 3, 2010, Bally's filed a motion to dismiss plaintiff's complaint with prejudice,¹ supported by a certification from the prospective juror who had spoken to the jury manager.   The certification stated:

1. I appeared for jury duty in Atlantic County Superior Court on Monday, January 4, 2010 and Tuesday, January 5, 2010.

2. I was assigned a juror badge on Monday morning as part of my jury service and wore this badge as directed at all times when I was in the Courthouse.

3. On Monday, I was sitting with three other female jurors in the café on the second floor of the Courthouse.

4. The four of us were each wearing our juror badges.

5. The four of us were discussing our pets.   One juror mentioned that she has 15 cats and was discussing the names of her cats.   I recall that this woman was an employee in the Mays Landing School District.   When the other three of us heard about her cats, we responded loudly indicating our surprise at that number of cats.

6. At that time, a woman who I later learned to be [plaintiff] was seated at the table behind our table.   I did not know who she was at that time and she did not introduce herself.  [Plaintiff] stated “Excuse me, I don't mean to butt in” and indicated that she heard us discussing our pets and that she also has pets.   She proceeded to advise us that she has dogs, breeds dogs, and named one of her dogs after her son.

7. A man in a suit, who had been seated with [plaintiff], quietly stated to her that she should not be speaking with us, as we were jurors.

8. She then approached the table and whispered in my ear “I just love your platinum hair” and left the table.

․

11. Later on Monday, I saw [plaintiff] leave the building with an African-American male juror.   The two of them went outside to smoke a cigarette and came into the building together, laughing.   He was dressed in construction-type clothing and was wearing his juror badge.   I did not see him at all on Tuesday.

12. Additionally, on Monday, I saw [plaintiff] sitting in the chairs immediately adjacent to the Jury Assembly Room. I saw her speaking with juror [s] who were wearing their juror name badges.

Plaintiff did not file any affidavits or certifications in opposition to Bally's motion.²  Nevertheless, she argued that the motion should be denied because the record was “insufficient ․ to grant the drastic relief requested by the defendant[s]” and that her actions “caused no harm, as there was no prospect of empanelling a jury with the pool available.”

When the parties appeared for oral argument on April 1, 2010, they were advised that the judge was “in the middle of a trial.”   Therefore, counsel consented to a determination based on their written submissions.

On April 27, 2010, the court granted Bally's motion and dismissed the complaint with prejudice.   The order was accompanied by a ten-page written decision, which included the following:

[T]his court finds that Plaintiff's conduct of joining in a conversation with potential jurors and divulging private information about herself, and going outside to smoke with a juror, qualifies as private talk that has the potential to supply outside evidence, not presented in open court, to jurors.   This Court finds that Plaintiff's conduct of informing a potential juror that she like[d] her platinum blond hair, after being told by her companion to refrain from speaking to Jurors, then loitering outside the Jury Assembly Room constitutes a deliberate action which deprives Defendants of their right to have their case heard by impartial, unprejudiced Jurors who are free from improper influences.   This Court finds that Plaintiff's conduct of going outside to smoke, with a Juror, wearing a juror badge, then coming in, still in amorous conversation with the Juror, is evidence of an exchange which extends [beyond] a mere casual exchange․  This Court finds that Plaintiff's conduct of initiating deliberate contact with Jurors seated for jury selection, and with Jurors, who are visibly wearing a Juror badge in the Courthouse, on the day of trial, qualifies as a deliberate act to thwart the essence of fair trial, thus preventing the preservation of an impartial Jury.

The court also found that “Defendants obviously suffered prejudice because of the additional expense they had to spend to prepare for a new trial and to track down [the juror who signed the certification].”

Based on these findings, the court determined that “Plaintiff's case must be dismissed in order to preserve the sanctity of the jury system.”   It also stated:

[A] dismissal is the appropriate sanction due to the facts that (1) Plaintiff was ordered on two occasions to refrain from contacting jurors,3 (2) Plaintiff actively sought to deny Defendant ․ the right to an impartial jury by initiating contact with Jurors, and (3) there is no guarantee that Plaintiff will not repeat her abhorrent behavior at the next trial.

On appeal, plaintiff raises the following arguments:

POINT ONE

the trial court abused its discretion in dismissing plaintiff's complaint with prejudice.

point two

the court failed to discharge its duty to interrogate any alleged tainted jurors in open court in the presence of counsel.

point three

defendant suffered no prejudicial impact as a result of plaintiff's alleged comments.

a. the juror who complained of plaintiff's alleged conduct was stricken for cause before sitting on the jury.

b. the venire panel was exhausted before the jury could be chosen due to the defendant's status as the operator of four Atlantic City casinos.

“Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party or when the litigant rather than the attorney was at fault.”  Zaccardi v. Becker, 88 N.J. 245, 253 (1982).   The Court has stated that this “extreme sanction” is reserved for situations in which a party “deliberately pursu[es] a course that thwarts persistent efforts to obtain the necessary facts.”  Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 514 (1995).

However, the imposition of sanctions, including dismissal with prejudice, constitutes “an exercise of discretion.”  Kohn's Bakery, Inc. v. Terraciano, 147 N.J.Super. 582, 584 (App.Div.1977) (citing R. 4:37-2(a);  Elmora S. & L. Ass'n v. D'Augustino, 103 N.J.Super. 301, 304 (App.Div.1968)).  “Judicial discretion connotes conscientious judgment;  it takes into account the law and the particular circumstances of the case before the court.”  Higgins v. Polk, 14 N.J. 490, 493 (1954);  see also Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (discussing the abuse of discretion standard).   In a similar context, this court has noted that despite the discretion afforded to trial judges investigating jury misconduct, “an adequate inquiry on the record is necessary for the purposes of appellate review.”  State v. Scherzer, 301 N.J.Super. 363, 488 (App.Div.), certif. denied, 151 N.J. 466 (1997).

Based on the record before us, we find that the court misapplied its discretion by dismissing the case without conducting a hearing to determine whether plaintiff's conduct was sufficiently egregious to warrant the ultimate sanction of dismissal with prejudice.   As the court initially observed, a hearing is needed to ascertain all of the relevant facts regarding plaintiff's conduct, including her state of mind.   This proceeding will allow the court to question the prospective juror and afford plaintiff a fair opportunity to respond to defendants' claim that she deliberately attempted to improperly influence the jury pool.

In view of the foregoing, the order dismissing plaintiff's complaint with prejudice is reversed, and the matter is remanded for further proceedings consistent with this opinion.   Jurisdiction is not retained.

Reversed and remanded.

FOOTNOTES

FN1. Muhammad joined the motion to dismiss on April 12, 2010..  FN1. Muhammad joined the motion to dismiss on April 12, 2010.

FN2. We attribute this omission to the fact that the court had already stated that a hearing was necessary..  FN2. We attribute this omission to the fact that the court had already stated that a hearing was necessary.

FN3. We agree with plaintiff that the record does not support this finding..  FN3. We agree with plaintiff that the record does not support this finding.

PER CURIAM