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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–4429–12T4

    Decided: April 03, 2014

Before Judges Reisner and Carroll.Eileen Meltzer, appellant, argued the cause pro se. Sandra D. Lovell argued the cause for respondent Harvey Meltzer (McElroy, Deutsch, Mulvaney & Carpenter, attorneys;  Edward J. DePascale, of counsel;  Ms. Lovell, on the brief). James L. Fant argued the cause for respondent Alan Gebroe (Hardin, Kundla, McKeon & Poletto, attorneys;  Mr. Fant, on the brief).

Following 662 days of discovery and eleven adjournments, plaintiff's personal injury action was dismissed when she was not prepared to proceed on April 15, 2013, a firm trial date that had been set by the court three months earlier.   Plaintiff Eileen Meltzer, pro se, now appeals from (1) a March 8, 2013 Law Division order denying her motion for another adjournment of the trial, to reopen discovery, and to vacate a prior order directing her to obtain counsel;  and (2) the April 15, 2013 order dismissing her complaint.   On the facts presented, we find no abuse of the trial court's discretion, and affirm both orders.

On December 14, 2006, plaintiff was a passenger in a vehicle being operated by her husband, defendant Harvey Meltzer, when it was allegedly struck by a vehicle driven by defendant Alan Gebroe.   Plaintiff claims that she injured her head, neck and back, and sustained a traumatic brain injury, as a result of the accident.   Plaintiff was previously injured in a car accident in 1998.   As a result of that earlier accident, plaintiff similarly claimed to have suffered a traumatic brain injury, along with vestibular dysfunction, cognitive deficits and reflect sympathetic dystrophy.

On June 3, 2008, plaintiff filed a complaint against defendants seeking damages for injuries sustained as a result of the 2006 motor vehicle accident.   The case was assigned for Track II discovery totaling 300 days.   Discovery was extended on September 17, 2009, December 17, 2009, and February 2, 2010, eventually expiring on August 7, 2010.   Discovery thus totaled 662 days.   A mandatory non-binding arbitration was held on January 11, 2011.   The matter was then listed for trial and eventually adjourned some ten times between April 18, 2011 and January 15, 2013.

More than six months after the failed arbitration, and almost a year after the discovery end date, on July 28, 2011, plaintiff's former counsel sought to serve expert reports by Dr. Elvira Anselmi, dated September 17, 2010, December 19, 2010, and June 21, 2011.   He also submitted to the defense progress reports and an expert report from Community Skills Program/Counseling and Rehabilitation of New Jersey.   When plaintiff's counsel served the expert reports, he allegedly did not include a due diligence notice, explaining the reason for the delay was because plaintiff had changed doctors at her insurance company's instruction.

Defense counsel moved to preclude the trial testimony of plaintiff's proposed experts because the reports were filed after the discovery end date lapsed.   Judge Torkwase Y. Sekou entered an order granting the defendant's motion to bar the expert reports and testimony on September 16, 2011.   Plaintiff's counsel then moved for reconsideration, which Judge Sekou denied on November 4, 2011.1

Following multiple adjournments, apparently requested at various times by all parties, the case eventually came on for trial on January 15, 2013.   Plaintiff's counsel represented to the judge that he had significant physical problems and would not be able to continue his representation of plaintiff.   Plaintiff was not present, but counsel represented that she had no objection to his withdrawal.   The parties then agreed on an April 15, 2013 trial date.   Judge Dennis F. Carey, III, approved the request, but instructed that plaintiff would have thirty days from that date, until February 15, to find another attorney.   The judge also told defendant Harvey Meltzer, himself an attorney who indicated he was appearing on behalf of his wife who was ill that day, that discovery was closed and would not be reopened.

The following colloquy then ensued between Mr. Meltzer and the court:

[The Court]:  Thank you, all right.   It – when you – when your wife retains her new attorney, there's a couple of things [that] should be made clear to her new counsel.

First and foremost, the discovery in this matter is closed.   There [are] orders in the case indicating that discovery has ended and discovery will not be reopened.

So that when the new attorney reviews the file, he may – he or she may say, well, hm, I think we need to have this done or something might have been done.

That kind of goes with the territory anytime a lawyer looks at a file that they are getting for the first time.

[Mr. Meltzer]:  Yes, sir.

[The Court]:  That will not happen.   So that needs to be made clear to the attorney that their job will be to review the file, prepare the file for trial, but they will not be permitted to engage in any new discovery.

[Mr. Meltzer]:  Understood your Honor.

The court then set the trial date for April 15, 2013, which gave plaintiff ninety days to prepare for trial.

After plaintiff retrieved her file from her former counsel, she claimed it became evident that the file was in disrepair and had several problems that were preventing other attorneys from taking her case.   Notwithstanding Judge Carey's explicit instructions, on February 20, 2013, after apparently being told by multiple attorneys that they would not work on her case unless discovery could be reopened, plaintiff moved to adjourn the trial date, reopen discovery and for additional time to obtain new counsel.   Plaintiff contended that her former counsel had committed certain errors which required her to reopen discovery to avoid dismissal of her case.   Judge Carey denied plaintiff's motion on March 8, 2013.   The judge wrote:

Plaintiff has not demonstrated exceptional circumstances.   Most of these issues have previously been decided.   On 1/1[5]/13,2 [the] court granted plaintiff's 11th adjournment request and advised all parties that [the] trial date of 4/15/13 would not be adjourned under any circumstances.

On April 1, 2013, plaintiff filed a motion for reconsideration of Judge Carey's March 8, 2013 order, which was returnable on April 19, 2013, after the upcoming trial date.   Plaintiff argued that the court did not state the facts and conclusions of law upon which it relied when it permitted plaintiff's prior attorney to be relieved in January, or when it denied plaintiff's motion to reopen discovery.

On April 15, 2013, plaintiff appeared for trial, without counsel.   Although a named defendant, Harvey Meltzer made a presentation on behalf of his wife.   He explained that he was unable to find an attorney to take over the case, as most attorneys would not undertake representation if discovery could not be reopened.   He also described that the case file was left in a “very deplorable condition.”   Specifically, he referenced the fact that plaintiff's counsel had not submitted a certification of due diligence when serving plaintiff's expert reports, even though they were submitted past the discovery end date.   Moreover, when defendants moved to bar the expert reports, plaintiff's counsel had failed to provide the court with an explanation as to why they were served late.

Judge Carey declined to reopen discovery, or to further adjourn the trial.   He explained,

[s]o it's this [c]ourt's position that in light of the fact that the case had been adjourned [eleven] times, it's [a 2008] docket number, it's one of the oldest cases in Essex County and the fact that they were given 30 days, Mr. Meltzer is a lawyer [who] knows a lot of lawyers, it seems to me that's more than enough time on a case in which there has been a substantial amount of money already offered to plaintiff[ ] to find out whether or not someone is going to take the case.

The matter was then assigned to Judge Edith Payne for trial.   Judge Payne asked plaintiff if she wished to proceed to trial pro se.   Plaintiff stated that she had a brain injury and she did not understand enough about court processes to proceed pro se.3  Judge Payne acknowledged that Mr. Meltzer was not in a position to represent his wife, since he was a defendant in the litigation.   Judge Payne then dismissed plaintiff's claims with prejudice.   However, the judge left open the option for plaintiff to retain an attorney and seek to vacate the dismissal.   The judge also noted that plaintiff had the right to appeal Judge Carey's decision to deny further adjournment of the matter.   This appeal followed.

On appeal plaintiff raises a host of arguments, foremost of which are that the trial court erred in (1) refusing to reopen discovery on March 8, 2013, and (2) dismissing rather than adjourning the case on April 15, 2013.   We address each of these arguments in turn.

Ordinarily, we review the trial court's decisions concerning matters of discovery under a mistaken exercise of discretion standard.  Bender v. Adelson, 187 N.J. 411, 428 (2006).   More specifically to the issue at hand, as it relates to extension of time for discovery, this court applies a deferential standard of review.   See Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 396–97 (2005).

Defendant's motion to reopen discovery was governed by Rule 4:24–1(c), which provides in relevant part that “[n]o extension of the discovery period may be permitted after arbitration or trial date is fixed, unless exceptional circumstances are shown.”   To demonstrate exceptional circumstances, our courts generally require that the attorney has diligently pursued the information sought during the discovery period, and yet has been frustrated by circumstances largely beyond his or her control.   See, e.g., Bender, supra, 187 N.J. at 429;  Rivers v. LSC P'ship, 378 N.J.Super. 68, 79–80 (App.Div.), certif. denied, 185 N.J. 296 (2005);  Zadigan v. Cole, 369 N.J.Super. 123, 133 (Law.Div.2004).   Additionally, the sought-after discovery should relate to an essential issue in the case.  Zadigan, supra, 369 N.J.Super. at 133;  Vitti v. Brown, 359 N.J.Super. 40, 51 (Law Div.2003), certif. denied, 185 N.J. 296 (2005), abrogated in part by Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J.Super. 159, 168–69 (App.Div.2009).

Similar to the present case, Vitti, supra, addressed a discovery extension motion filed “after the time for discovery had expired and the matter had been scheduled for arbitration.”  359 N.J.Super. at 42.   The court established a four-prong test for demonstrating “exceptional circumstances” sufficient to merit an extension of discovery under Rule 4:24–1(c):

Obviously, a more substantial showing is required to justify an extension of the time for discovery once that time has expired ․ First, as with motions considered within the original discovery period, any application should address the reasons why discovery has not been completed within time and counsel's diligence in pursing discovery during that time.   Any attorney requesting additional time for discovery should establish that he or she did make effective use of the time permitted under the rules.   A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request.   Second, there should be some showing that the additional discovery or disclosure sought is essential, that is that the matter simply could not proceed without the discovery at issue or that the litigant in question would suffer some truly substantial prejudice.   Third, there must be some explanation for counsel's failure to request an extension of the time for discovery within the original discovery period.   Finally, there generally must be some showing that the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.   An excessive work load, recurring problems with staff, a desire to avoid the expense associated with discovery, or delays arising out of extended efforts to resolve a matter through negotiations will generally not be sufficient to justify an extension of time.   Assuming each of those issues is adequately addressed, the court should permit additional time for discovery with appropriate limitations.   On the other hand, assuming the movant fails to address any one of those issues, it would appear appropriate to deny the request for additional time.   In that circumstance, it would be difficult to conclude that denying the request for additional time would result in a “grave injustice.”

[Id. at 49–52 (emphasis added).]

While not specifically articulated, plaintiff presumably sought to reopen discovery for the purpose of serving her expert reports, which had previously been ordered barred.   While it is clear that the discovery sought is essential to her claim, thereby satisfying factor two, plaintiff fails to establish any of the remaining Vitti factors.   Rather, plaintiff's claim rests solely on former counsel's alleged lack of diligence and preparedness.   A “lack of diligence” on the part of plaintiff's counsel does not constitute an exceptional circumstance justifying a discovery extension under Rule 4:24–1(c);  Rivers, supra, 378 N.J.Super. at 79 (citing Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J.Super. 463, 473–74 (App.Div.), remanded on other grounds, 185 N.J. 290 (2005)).   There has also been no evidence presented that plaintiff's counsel was actively pursuing the reports during the time that they were late, and was “frustrated by circumstances beyond his control.”   Moreover, plaintiff's counsel opposed defendant's application to bar the expert evidence, and filed a motion for reconsideration of that order.   Thus, plaintiff's counsel was actually providing a reasonable degree of representation to plaintiff and, on this record, contrary to plaintiff's contention, we are unable to ascribe total blame to counsel for the failure to provide the reports from plaintiff's new treatment team in a timely fashion.

Additionally, we note that the March 8, 2013 order denying plaintiff's motion to reopen discovery came more than two-and-a half-years after the August 7, 2010 discovery end date, following three extensions of the discovery period, and after the trial had already been adjourned eleven times.   Coupled with plaintiff's inability to satisfy the majority of the Vitti factors, we find this extreme delay fatal to plaintiff's application to reopen discovery.

For similar reasons, we find no abuse of discretion in the trial court's denial of plaintiff's request to adjourn the April 15, 2013, trial date.   The granting or denial of an adjournment is committed to the discretion of the trial judge.  Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003).   We will reverse for failure to grant an adjournment only if the trial court abused its discretion, causing a party a “manifest wrong or injury.”  State v. Hayes, 205 N.J. 522, 537 (2011).  “Calendars must be controlled by the court, not unilaterally by [counsel], if civil cases are to be processed in an orderly and expeditious manner.”  Vargas v. Camilo, 354 N.J.Super. 422, 431 (App.Div.2002), certif. denied, 175 N.J. 546 (2003).

In exercising discretion when counsel is not available or is not prepared to proceed, the trial court must navigate a course between “ ‘the salutary principle that the sins of the advocate should not be visited on the blameless litigant,’ and, ․ ‘the court's strong interest that management of litigation, if it is to be effective, must lie ultimately with the trial court and not counsel trying the case.’ ”  Kosmowski, supra, 175 N.J. at 574 (citation omitted) (quoting Aujero v. Cirelli, 110 N.J. 566, 573 (1988);  Rabboh v. Lamattina, 312 N.J.Super. 487, 492 (App.Div.1998), certif. denied, 160 N.J. 88 (1999)).   The court must remain mindful of its overriding objective that “[c]ases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available.”  Connors v. Sexton Studios, Inc., 270 N.J.Super. 390, 395 (App.Div.1994);  see also Jimenez v. Baglieri, 295 N.J.Super. 162, 165 (App.Div.1996) (abuse of discretion found where trial court denied a one-day adjournment because of unavailability of expert), rev'd on other grounds, 152 N.J. 337 (1998).

We recognize that denial of the adjournment request ultimately led to a harsh result, i.e., the dismissal of plaintiff's complaint.   However, while all of the prior adjournments of the trial were not attributable to plaintiff, certainly eleven was an extreme number and, as Judge Carey noted, the case was among the oldest in the Essex vicinage.   The judge recognized, “I think the [c]ourt has gone out of its way to treat Mrs. Meltzer very fairly or this case wouldn't have been adjourned [eleven] times.”   Consequently, under these circumstances, given the age of the case and plaintiff's request for an open-ended adjournment that included reopening discovery and retaining new counsel, we perceive no abuse of discretion.

Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).



FN1. Plaintiff does not appeal from the September 16 or November 4, 2011 orders.   Nor have we been supplied with the transcript of either proceeding.   Thus, the propriety of the court's order striking plaintiff's expert reports and testimony is not properly before us.   See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J.Super. 456, 459 (App.Div.2004) (“[O]nly the judgment or orders designated in the notice of appeal ․ are subject to the appeal process and review.”)..  FN1. Plaintiff does not appeal from the September 16 or November 4, 2011 orders.   Nor have we been supplied with the transcript of either proceeding.   Thus, the propriety of the court's order striking plaintiff's expert reports and testimony is not properly before us.   See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J.Super. 456, 459 (App.Div.2004) (“[O]nly the judgment or orders designated in the notice of appeal ․ are subject to the appeal process and review.”).

FN2. The judge mistakenly wrote January 14, 2013 on the order..  FN2. The judge mistakenly wrote January 14, 2013 on the order.

FN3. The defense expert, Sidney E. Bender, M.D., gave a de bene esse deposition during which he specifically disputed plaintiff's claim that she had suffered a traumatic brain injury in the accident, and otherwise contradicted the gravity of her claimed injuries..  FN3. The defense expert, Sidney E. Bender, M.D., gave a de bene esse deposition during which he specifically disputed plaintiff's claim that she had suffered a traumatic brain injury in the accident, and otherwise contradicted the gravity of her claimed injuries.


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