Dismissal With Prejudice Too Harsh A Remedy For Expert’s Unavailability

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Gavel (pd)There is often tension between a court's need to effectively manage its docket and the overriding objective that a lawsuit be resolved on its merits and not because a party (or its counsel) misses a deadline. Courts establish deadlines. If they are ignored, can the court — as a sanction, and in the interest of managing its docket — dismiss the lawsuit with prejudice? According to the Appellate Division in a recent unpublished decision, Trezza v. Lambert-Wooley, the answer to this question is "no," unless the noncompliance was purposeful and no lesser remedy was available to the court. 

In Trezza,plaintiffs sued defendants for medical malpractice. Three years after the lawsuit was filed, the court set a peremptory trial date. This was rescheduled when the court did not reach the case on the trial date. The trial did not take place on the rescheduled date or a subsequent rescheduled date, both times because defendant's designated trial counsel was unavailable. Thereafter, the Presiding Judge issued a sua sponte order scheduling trial for approximately four months later and setting forth "specific and stringent terms as to the course and conduct of the case relative to trial." The order mandated that: (1) the trial date would not be adjourned to accommodate the parties' or counsels' personal or professional schedules; (2) counsel was required  to monitor the schedules of their parties, witnesses, and experts, and if one or more were not going to be available on the trial date, arrange for a de bene esse deposition ahead of trial; and (3) if designated trial counsel was not available on the trial date, alternate counsel would have to be found, whether or not from the same firm.

Five days before the scheduled trial date, plaintiff's counsel requested that the trial be carried for four days due to the unavailability of plaintiff's liability expert, which he only learned about a few days prior to the request. Defendants' counsel consented to the request. The judge assigned to the case considered the request but, in light of the Presiding Judge's order, determined that he did not have the authority to grant the adjournment. He sent the parties to the Presiding Judge, who denied the request and directed the parties to proceed to trial. "Predicated upon the terms of the order, the age of the case, and plaintiff's expert's unavailability, the judge [then] dismissed the complaint with prejudice." Plaintiffs appealed.

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No Repose for the Weary: Developers Must Deal With Untimely Appeals of Site Plan Approval

by:    Katherine A. Muscalino

A recent decision from the New Jersey Supreme Court gives developers something new to worry about — appeal of their land use approvals even after the expiration of the 45 day prerogative writ window.  The decision, which appears to deny developers the very repose that this limitation was intended to provide, means that developers remain exposed to lawsuits even after the statutory period lapses.

In Hopewell Valley Citizens’ Group Inc. v. Berwind Property Group Development Co., an applicant obtained preliminary site plan approval for a General Development Plan on May 29, 2008, over the objections of members of the public.  The approval was memorialized on September 25, 2008 and the defendant published notice of the resolution’s approval on September 27, 2008.  On October 1, 2008, the defendant informed the municipality’s Board Secretary/Administrative Officer of its publication of the approval.

Despite this notice, the Board Secretary/Administrative Officer published additional notice of the resolution on October 2, 2008.  Thereafter, an objector contacted the Board Secretary/Administrative Officer and inquired as to the date of the approval’s publication.  The Board Secretary/Administrative Officer replied that the approval had been published October 2.  The objector then used the October 2 date to calculate the 45 day period in which a prerogative writ action could be filed, and filed suit on November 17, 2008.  The suit was thus filed six days after the 45 day period expired from the original publication of the approval, but within 45 days of the second publication.

 

Continue reading “No Repose for the Weary: Developers Must Deal With Untimely Appeals of Site Plan Approval”

Does Delay Doom Development Challenge?

The New Jersey Supreme Court is currently considering whether a six-day delay in filing a complaint will doom a community group's challenge to a proposed development plan in Hopewell Township.  In the case, captioned Hopewell Valley Citizens Group v. Berwind Property Group Development Co., the Court is faced with the familiar choice between strictly applying the deadlines set forth in the Rules of Court and relaxing those deadlines to accommodate the interests of the parties in appropriate situations.

In 2008, the Hopewell Township planning board approved a commercial development plan over the strenuous objections of local residents.  A group known as the Hopewell Valley Citizens Group subsequently decided to file a complaint in lieu of prerogative writs challenging this decision, but it did so more than 45 days after publication of the board's decision.  While the group acknowledged that its complaint was untimely under R. 4:69-6, it argued that the delay was inadvertent, as it was caused by incorrect information provided by a clerk in the township's planning office.  Moreover, the group argued that an extension should be provided as a matter of course because of the public interest nature of the group's complaint, which challenges the possible environmental impact of the development plan.  In an opinion written by Mercer County Superior Court Assignment Judge Linda Feinberg, the New Jersey Appellate Division rejected this argument and ruled that there was no reason to allow the challenge to proceed and no reason to grant an extension.  (A copy of the Appellate Division opinion can be found here.)  It is now up to the Supreme Court to determine whether to allow this ruling to stand, or to grant the extension and permit the group's challenge to proceed.  A decision is expected later this winter.