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 According to the Appellate Division in a recent unpublished decision, Trezza v. Lambert-Wooley, the answer to this question is "no," unless the noncompliance was purposeful and no lesser remedy was available to the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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Thank You, Captain Obvious — It Is Improper To Throw Your Records In A Dumpster In Advance Of A Lawsuit

 by:  Peter J. Gallagher (@pjsgallagher)

When most litigators hear the term “spoliation” nowadays, they probably think of emails, servers, document retention policies, and back-up tapes. But the Appellate Division recently reminded us that old-fashioned spoliation is still alive and well (and improper).

In Hess Corporation v. American Gardens Management Company, plaintiff sued various single-purpose entities with which plaintiff had contracted to sell oil and gas. Plaintiff also sued the individual owner of all of these entities, which were essentially judgment proof, arguing that it was entitled to pierce the corporate veil and hold him liable because he had co-mingled funds and fraudulently conveyed and diverted assets from the various corporate entities for his personal use.

During discovery, plaintiff served the individual defendant with a document request. The individual defendant failed to respond and his answer was stricken. He later moved to reinstate his answer, first arguing that he could not answer the discovery request without implicating his Fifth Amendment right against self incrimination (which the court rejected) and then claiming that he did not have many of the documents requested. Based on the latter, the court vacated its prior order and reinstated his answer.

 

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Going Once . . . Going Twice . . . Sold! To The Person Who Cannot Remain Anonymous!

by:  Peter J. Gallagher (@pjsgallagher

While data breaches and cyber security are, unfortunately, regular topics on the nightly news, a New Jersey trial court recently dealt with a much more low-tech privacy issue. In Brennan v. Bergen County Prosecutor’s Office, the trial court addressed the “intriguing question” (the court’s words, not necessarily mine) of “whether the winning bidders in a public auction have a reasonable expectation of privacy in their personal information transmitted to a public agency in connection with their participation in [a public] auction.” In other words, if you are the winning bidder at a public auction, must the public entity that held the auction produce documents revealing your identity in response to an OPRA request? In Brennan, the trial court’s answer was a qualified yes.

In Brennan, the Bergen County Prosecutor’s Office seized baseball memorabilia from an individual who it alleged had illegally sold prescription drugs. The memorabilia was later sold at an auction administered by a third-party that the prosecutor’s office hired to handle the auction. Plaintiff filed an OPRA request seeking, among other things, documents that would reveal the identities of the winning bidders at the auction – registration forms and bid documents that revealed names and phone numbers of the winning bidders. The prosecutor’s office refused to provide this information, claiming that the winning bidders reasonably expected that their identities would not be made public. Plaintiff sued to compel the production of the documents.

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When, If Ever, Can Judges Be Social Media “Friends” With Attorneys?

by: Peter J. Gallagher (@pjsgallagher)

Please check out a recent article I wrote for law360.com on whether judges can be “friends” with attorneys on Facebook or other social media without running afoul of the relevant ethics rules. Here is the opening paragraph:

“Social media has become a part of most lawyers’ personal and professional lives. The same is true for many judges. However, it is still not clear when, if at all, it is appropriate for a judge to be “friends” with a lawyer on social media, particularly when that lawyer appears regularly before the judge. While it is certainly true that, as some courts and ethics committees have observed, social media is fraught with peril for judges, no uniform rule has emerged on the issue. Some jurisdictions prohibit judges from being ‘friends’ with any lawyer who appears regularly before them, while others donot prohibit the practice unless the social media ‘friendship’ also implicates one of the canons of the Code of Judicial Conduct. The latter seems to be the better approach, but it has not been universally adopted and it is not clear that it ever will be.”

Check out the rest of the article here.

It’s Not “Bad Faith” For Lenders To Stick To The Terms Of Their Agreements With Borrowers

by:  Peter J. Gallagher

Today, the Appellate Division provided another reminder that it is not “bad faith” for a lender to abide by the terms of its mortgage with a borrower. In Warner v. Sovereign Bank, borrowers fell behind on their residential mortgage and contacted their lender to request a modification. While their request was under review, the lender filed a foreclosure complaint. The lender eventually denied the borrower’s request for a modification, but the two sides entered into a forbearance agreement.  

The borrowers claimed — without evidential support according to the Appellate Division — that the lender required, as a condition of its agreeing to review their request for a modification, that borrowers not list their home for sale. Therefore, after their loan modification request was denied, the borrowers sued the lender claiming, among other things, that the lender acted in bad faith by initially not allowing them to list their home for sale and for then not providing them with a timely answer about their request for a modification. The borrowers claimed that both of these actions prevented them from selling their home, which caused them to sustain a substantial loss of their equity.

 

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