SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0892-16T1

DR. EMMANUEL OKEREKE,

Plaintiff-Appellant,

v.

ROSS UNIVERSITY SCHOOL OF

MEDICINE, DR. ENRIQUE FERNANDEZ, 

and DR. NANCY PERRI,

Defendants-Respondents.

__________________________________

Argued March 1, 2018 – Decided June 26, 2018

Before Judges Simonelli and Gooden Brown. 

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. L1137-11.

Christian R. Oehm argued the cause for 

appellant (Lindgren, Lindgren, Oehm & You, 

LLP, attorneys; Christian R. Oehm, on the 

briefs).

Glenn T. Graham argued the cause for 

respondents (Kelley Drye & Warren, LLP,

attorneys; William S. Gyves, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-0892-16T1

Plaintiff Emmanuel Okereke appeals from the September 30, 

2016 trial court order denying his motion to vacate the 2012 

dismissal of his complaint against defendants Ross University 

School of Medicine (RUSM) and two of its faculty members. The 

underlying action arose out of plaintiff's unsuccessful attempt 

to secure a medical degree from RUSM where he re-enrolled in 2002. 

The court dismissed the complaint with prejudice based on 

plaintiff's repeated discovery violations. Plaintiff asserts his 

attorneys' misconduct, errors, or negligence constituted 

exceptional circumstances warranting relief under Rule 4:50-1(f), 

and the court should have excused his four-year delay in applying 

for relief. We disagree and affirm. 

On February 8, 2011, plaintiff filed a five-count complaint 

against defendants, seeking injunctive relief and monetary 

damages. In the complaint, plaintiff alleged that while attending 

RUSM, the staff "singled [him] out for derogatory and 

discriminatory treatment" and "unfairly, arbitrarily and 

capriciously [gave him] a failing grade despite his excellent 

performance of the requisite academic requirements of his 

studies." He further alleged that when he complained, he was 

retaliated against and received more unfair treatment, which 

ultimately caused him to miss a required portion of the United 

States Medical Licensing Examination (USMLE). Plaintiff, who is 
3 A-0892-16T1

Nigerian, asserted claims for violation of the New Jersey Law 

Against Discrimination, tortious interference, defamation, and 

breach of contract. He also requested an order compelling 

defendants to grant him an extension of time to register, prepare,

and sit for the USMLE.

In a July 8, 2011 order, the court granted in part defendants'

motion to dismiss the complaint for failure to state a claim,

dismissing all but the breach of contract and injunctive relief 

claims. Defendants filed a contesting answer on September 22, 

2011, and, on November 2, 2011, served plaintiff with 

interrogatories and document demands, as well as a notice to 

produce plaintiff for deposition on December 15, 2011. By letter 

dated November 15, 2011, plaintiff's then-attorney, John Charles 

Allen, forwarded the requests to plaintiff, and asked plaintiff 

to return the interrogatory answers and requested documents to him

so that he could review them before forwarding them to defendants. 

The letter also invited plaintiff to contact Allen if he had "any 

questions or would like to speak with [him]." 

When plaintiff failed to respond, by letter dated December 

13, 2011, defendants informed Allen that if they did not receive 

responses by December 27, 2011, they intended to move to compel 

discovery or, alternatively, dismiss the complaint for failure to 

submit timely responses to their discovery requests. 
4 A-0892-16T1

Subsequently, defendants agreed to extend the response deadline 

to January 11, 2012. When plaintiff failed to respond, on January 

12, 2012, Allen sent plaintiff another letter advising him it was 

"imperative that [he] provide . . . answers in order to avoid a 

[m]otion by [d]efendants to [d]ismiss [his] complaint and case." 

In the letter, Allen reiterated that plaintiff should contact him 

with "any questions[.]" 

Receiving no response and with the March 21, 2012 discovery 

end date approaching, on January 18, 2012, defendants filed a 

motion to compel discovery responses or, alternatively, dismiss 

the complaint. The following day, Allen forwarded defendants' 

motion to plaintiff, accompanied by a letter stating it was "at 

least [his] fifth . . . request for [plaintiff] to provide [his] 

responses to [d]efendants' [d]iscovery [r]equests." Allen

cautioned plaintiff that failure to comply would "very likely"

result in the dismissal of the case.

On February 3, 2012, the court granted defendants' motion and 

dismissed plaintiff's complaint without prejudice for failure to 

respond to discovery demands. On February 6, 2012, Allen sent 

plaintiff an email stating he had "warned [plaintiff] on numerous 

occasions that this would occur" if he did not provide answers to 

defense counsel. Allen also explained that the dismissal of the 

complaint was without prejudice, meaning the court could reinstate 
5 A-0892-16T1

the complaint if plaintiff submitted complete responses to their

discovery requests within ninety days of the dismissal and paid 

the reinstatement fee. Allen implored plaintiff to "[p]lease make 

it [his] absolute priority to prepare and provide [him] with [his] 

answers . . . without further delay." The email included a read 

receipt notification, indicating plaintiff opened the email 

approximately thirty minutes after Allen sent it. 

On March 1, 2012, plaintiff sent Allen his purported answers 

to defendants' interrogatories and supporting documents. However, 

before Allen forwarded the responses to defendants, on April 9, 

2012, defendants moved to dismiss the complaint with prejudice. 

On April 26, 2012, Allen sent a letter to the court requesting an

adjournment of defendants' motion. Allen explained he had "only 

recently . . . received [plaintiff's] responses to [d]efendants' 

discovery requests" and needed two weeks "to prepare them for 

service upon [d]efense [c]ounsel." Allen also informed the court 

that plaintiff had been in a remote part of Nigeria caring for ill 

family members for several months, making communication difficult. 

Based on Allen's representations in his April 26, 2012 letter, 

defendants withdrew the motion. 

On the same date, Allen advised plaintiff he had "successfully 

negotiated the withdrawal of [defendants'] motion[.]" However, 

Allen informed plaintiff that his interrogatory responses were 
6 A-0892-16T1

"quite deficient[,]" as they were uncertified and "[m]any of the 

answers [were] not responsive to the questions[.]" Allen told 

plaintiff "[i]t [was] imperative that [plaintiff] contact [him] 

to discuss these responses as [they] must promptly [correct] the 

deficiencies to avoid the potential of another motion to dismiss."

Upon receiving no responses, in a June 5, 2012 letter, 

defendants warned Allen that they would renew their motion to 

dismiss the complaint with prejudice if plaintiff did not respond 

within thirty days. In response, Allen forwarded plaintiff's 

uncertified interrogatory responses to defense counsel and 

informed him he was still waiting for plaintiff's certification,

which he would forward upon receipt. Defendants' thirty-day 

extension expired on July 5, 2012, and plaintiff again failed to 

submit a timely response. After granting plaintiff another fiveday extension, to which he also failed to adhere, defendants 

renewed their motion to dismiss the complaint with prejudice. On 

July 27, 2012, the court granted defendants' unopposed motion and 

dismissed plaintiff's complaint with prejudice for failure to 

provide responsive answers to interrogatories and requested 

documents.

On November 2, 2013, plaintiff retained Christopher J. 

Cassar, a New York attorney. On May 9, 2014, Cassar filed a legal 

malpractice lawsuit against Allen in the United States District 
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Court for the Southern District of New York in connection with 

Allen's representation of plaintiff in his lawsuit against 

defendants. A default judgment was entered on October 3, 2014. 

However, on September 17, 2015, the default judgment was vacated 

and the case was transferred to the United States District Court 

for the District of New Jersey on Allen's motion. On March 16, 

2016, plaintiff retained a third law firm, the Mark Law Firm, LLC, 

to replace Cassar in the malpractice case against Allen.

In September 2016, plaintiff filed a pro se motion pursuant 

to Rule 4:50-1, seeking to reinstate his complaint in the 

underlying action against defendants. In his supporting 

affidavit, plaintiff explained that in March 2011, about a month 

after filing suit against defendants, he went to Nigeria "to care 

for a family member . . . , as [his] presence and expertise were 

necessary for [his family member's] treatment and recovery."

Plaintiff averred he had given Allen instructions to contact his 

business partner and guarantor Josephine Circosta, who could reach 

him in the remote part of Nigeria where he was located and "was 

in constant and continuous contact" with him. He further averred

that he informed Allen in October 2011 that, while in Nigeria, his 

mother fell critically ill, requiring him to extend his stay. 

Plaintiff acknowledged receiving several communications from 

Allen regarding his discovery obligations. However, according to 
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plaintiff, he "was confused and did not know how to respond to the 

discovery requests . . . so [he] waited for [Allen] to contact and 

instruct [him] . . . how to answer the discovery questions." Then, 

after Allen informed him that the court had dismissed his complaint 

without prejudice because of his non-compliance, he "undertook to 

answer . . . as best as [he] possibly could," without Allen's 

guidance. In a May 8, 2012 letter to Allen, plaintiff acknowledged 

the deficiencies in his answers and admitted that phone contacts 

were difficult and unreliable. Nevertheless, plaintiff asked 

Allen to contact him by phone to "correct the deficiencies" or 

indicated he would contact Allen to discuss them upon his return 

to the United States. 

Plaintiff averred that "Allen never called [him] to go through 

the discovery" or "advise [him] how to answer the interrogatories." 

However, plaintiff acknowledged receiving Allen's May 24, 2012 

reply to his May 8, 2012 letter, in which Allen indicated that he 

had "attempted several times to reach [plaintiff] by phone, 

however, the calls would not go through." Allen also reiterated 

that plaintiff could call him at any time. 

Plaintiff asserted that on June 6, 2012, Allen informed him 

that defendants intended to file a motion to dismiss the complaint 

with prejudice "unless [he] certified the [a]nswers to 

[i]nterrogatories." He claimed that on June 13, 2012, he emailed 
9 A-0892-16T1

to Allen "the language required to certify and attest to the

truthfulness of [his] [a]nswers to [i]nterrogatories" that Allen 

had previously provided to him. Plaintiff claimed that, although 

he did not communicate with Allen between June 2012 and March 

2013, he was waiting to hear from him regarding a date for his

deposition or settlement negotiations. He believed Allen "would 

reach out and contact either [him] or . . . Circosta if he had any 

updates regarding [the] case."

When no updates came, plaintiff returned from Nigeria in June 

2013 to confront Allen regarding the status of his case. Plaintiff 

claimed Allen called him in July 2013 to request a letter outlining 

why he was out of the country, which he provided. Plaintiff also 

claimed Allen "promised to send a form for [plaintiff] to fill 

out," but he never received it. Meanwhile, according to plaintiff, 

Allen refused to tell him "the status of the case" and "kept 

avoiding [his] questions." As a result, plaintiff lost confidence 

in Allen and retained Cassar in November 2013.

Plaintiff claimed he was unaware that the dismissal motion 

had been filed or granted until June 18, 2014, after he retained 

Cassar's firm. Plaintiff returned to Nigeria in November 2015 to 

attend a funeral and remained there until January 2016. In 

February 2016, he was advised that Cassar's firm could not proceed 

with the litigation in New Jersey because Cassar was not licensed 
10 A-0892-16T1

to practice in New Jersey and the associate on the case who "was 

licensed to practice in New Jersey had earlier left the firm." At 

that point, plaintiff sought out a New Jersey attorney and retained 

the Mark Law Firm to represent him in his case against Allen.

Plaintiff explained he was unfamiliar with the legal system 

and had "relied upon [his] attorneys to properly assist [him]," 

but both Allen and Cassar "continuously misled and misinformed" 

him. Plaintiff claimed the underlying complaint was dismissed 

"through no fault of [his] own" and attributed the dismissal "to 

the failures of . . . Allen." As to Cassar, plaintiff averred 

"Cassar also failed to file the [reinstatement] motion, despite 

his representations . . . that he would do so." 

At the September 30, 2016 hearing on the Rule 4:50-1(f)

motion, the court questioned plaintiff's inaction since June 2014, 

when plaintiff claimed he first learned of the dismissal. 

Plaintiff responded he "started looking for other attorneys" but 

"couldn't find anybody to assist [him,]" became "extremely 

frustrated[,]" and kept writing to Cassar. Following oral

argument, the court denied the motion. The court noted that in 

order to obtain relief, plaintiff needed to show "[e]xtraordinary 

circumstances[,]" which are "circumstances beyond the ability of 

the . . . moving party[] to file a [m]otion," that are "peculiar 

to the individual" and "would make it unconscionable and an 
11 A-0892-16T1

injustice to allow the [j]udgment to stand." The court concluded 

plaintiff failed to demonstrate extraordinary circumstances 

because he had "been derelict from the very beginning." 

To support its finding, the court cited plaintiff's

abandonment of his lawsuit through his two-year absence from the 

country, his failure to communicate with Allen after learning his 

case was in danger of dismissal, and his two-year delay in filing 

a motion to vacate. In contrast, the court noted that while 

"plaintiff was out of the country[,] his lawyer sent him 

communications, which he received over a period of many months, 

and told him that he must file [c]ertified [a]nswers to the 

[i]nterrogatories sought by the defendant or the [c]omplaint would 

be dismissed." The court rejected plaintiff's contention that it 

was his lawyer's fault that the case was dismissed because Allen 

ignored plaintiff's requests for assistance. The court entered a 

memorializing order and this appeal followed.

On appeal, plaintiff renews his argument that he is entitled 

to relief under Rule 4:50-1(f) because the conduct of his previous 

counsel constituted "exceptional circumstances." Plaintiff argues 

the court erred by failing to apply the analysis set forth in 

Jansson v. Fairleigh Dickinson University, 198 N.J. Super. 190, 

195 (App. Div. 1985) since the dismissal was the result of his 

attorney's failure to help him provide timely interrogatory 
12 A-0892-16T1

answers despite his requests for assistance. He also contends his 

"application was made within a reasonable amount of time from 

being finally made aware of the true case status and his rights 

and options." 

A trial court's decision on a Rule 4:50-1 motion is entitled 

to "substantial deference, and should not be reversed unless it 

results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n 

v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of discretion 

may be found when a decision lacks a "rational explanation," 

represents an inexplicable "depart[ure] from established 

policies," or rests "on an impermissible basis." Id. at 467-68 

(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 

(2007)). Our task is not "to decide whether the trial court took 

the wisest course, or even the better course, since to do so would

merely be to substitute our judgment for that of the lower court. 

The question is only whether the trial judge pursued a manifestly 

unjust course." Gittleman v. Cent. Jersey Bank & Tr. Co., 103 

N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 

N.J. 503 (1968).

Rule 4:50-1 provides various grounds for a court to relieve 

a party from a judgment. Under subsection (f), the judgment should 

be set aside for "any other reason justifying relief from the 

operation of the judgment or order." R. 4:50-1(f). "[R]elief 
13 A-0892-16T1

under Rule 4:50-1(f) is available only when 'truly exceptional 

circumstances are present'" such that "were it not applied, a 

grave injustice would occur." Guillaume, 209 N.J. at 484 (quoting 

Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286, 289 (App. 

Div. 1994)). A party seeking relief under subsection (f) should 

file a motion "within a reasonable time" after the judgment's 

entry, "which, in some circumstances, may be less than one year." 

Orner v. Liu, 419 N.J. Super. 431, 437 (App. Div. 2011); R. 4:50-

2.

An attorney's error, misconduct or incompetence may 

constitute exceptional circumstances warranting relief under Rule

4:50-1(f). Jansson, 198 N.J. Super. at 196. In Jansson, the 

plaintiffs provided their interrogatory answers to their attorney, 

who then failed to submit them to the defendants by the applicable 

deadline, resulting in the dismissal of the complaint. Id. at 

192-93. The attorney then "repeatedly misrepresented that the 

trial was imminent when the plaintiffs inquired as to the status 

of the case." Id. at 193. The matter remained dormant until the 

plaintiffs dismissed their attorney and retained new counsel who 

promptly moved to reinstate the complaint, albeit three years 

after the dismissal order was entered. Ibid. In reversing the 

trial court's order denying the reinstatement, we enunciated four 

factors courts should consider in determining whether the rules 
14 A-0892-16T1

should be relaxed: "(1) the extent of the delay [between dismissal 

and the motion to reinstate], (2) the underlying reason or cause,

(3) the fault or blamelessness of the litigant, and (4) the 

prejudice that would accrue to the other party." Id. at 195.

In Parker v. Marcus, 281 N.J. Super. 589, 593-94 (App. Div. 

1995), we extended the Jansson analysis to cases involving attorney 

misconduct unrelated to discovery, and in Ridge at Back Brook, LLC 

v. Klenert, 437 N.J. Super. 90, 99 (App. Div. 2014), we applied 

the Jansson factors to errors made by pro se litigants when their 

acts or omissions would have been grounds to vacate a judgment if 

committed by an attorney. However, in Albarran v. Lukas, 276 N.J. 

Super. 91 (App. Div. 1994), we questioned whether subsequent 

amendments to the court rules for discovery default rendered the 

Jansson analysis inapplicable. Under the amended rule, a party 

who defaults on his or her discovery obligations has ample 

opportunities to cure the deficiency. See R. 4:23-5; see also

Albarran, 276 N.J. Super. at 94-95. In Albarran, following the 

entry of an order of dismissal with prejudice pursuant to Rule

4:23-5(a)(2) for failure to answer interrogatories, plaintiffs 

moved twice to reinstate their complaint, which was ultimately 

granted by the trial court. Albarran, 276 N.J. Super. at 93-94. 

We reversed because, inasmuch as the amended rule gave a 

party "[]four[] opportunities . . . to avoid dismissal . . . with 
15 A-0892-16T1

prejudice" due to discovery default, "we perceive[d] no reason why 

[the] approach in Jansson should continue to govern this [R. 4:23-

5] discovery default problem." Id. at 95. We explained that 

"[a]fter a party has defaulted in [his or] her discovery 

obligations" and "foregone four opportunities to discharge [their] 

responsibilities as a litigant[,]" "the New Jersey Court Rules 

provide three additional opportunities to a party who seeks to 

avoid the consequence contemplated by the rule[,]" by virtue of a 

motion for reconsideration pursuant to Rule 4:49-2, an appeal 

pursuant to Rule 2:4-1(a), and a motion for relief from a final 

order pursuant to Rule 4:50-1. Id. at 94. 

Here, plaintiff has not shown that the trial court's refusal 

to grant relief under Rule 4:50-1(f) was a mistaken exercise of

discretion. Plaintiff has not demonstrated that the dismissal of 

the complaint was the result of attorney error, misconduct or 

incompetence. On the contrary, the record is replete with letters 

and emails from Allen imploring plaintiff to respond to defendants' 

discovery requests, inviting plaintiff to contact him with 

questions, and informing him that defendants intended to move for 

dismissal if he did not correct the deficiencies. Indeed, the 

trial court found that the failure to comply with the discovery 

obligations was entirely plaintiff's fault, rather than his 

attorney's, noting plaintiff had been derelict from the very 
16 A-0892-16T1

beginning. Even applying the Jansson analysis, all four factors, 

particularly "the fault . . . of the litigant[,]" militate against 

granting plaintiff relief. 198 N.J. Super. at 195. As plaintiff's 

own actions caused the dismissal, this case falls far short of the 

"truly exceptional circumstances" required for relief under Rule

4:50-1(f), and we do not believe that any of the aforementioned 

decisions require a different result. 

Affirmed.