SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3993-19

STACIE PERCELLA, 

Plaintiff-Appellant, 

v. 

JAMES M. DAVIS, Individually,

and CITY OF BAYONNE, 

Defendants-Respondents.

____________________________

Submitted April 21, 2021 – Decided May 28, 2021

Before Judges Ostrer and Vernoia. 

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-0177-18. 

Bruno, Gerbino, Soriano & Aitken, attorneys for 

appellant (Vincent F. Gerbino, on the briefs). 

Florio Perrucci Steinhardt Cappelli Tipton & Taylor, 

LLC, attorneys for respondents (Nicholas A. Sullivan, 

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NOT FOR PUBLICATION WITHOUT THE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-3993-19

In her complaint, plaintiff Stacie Percella alleges defendant City of 

Bayonne terminated her employment in retaliation for her filing a federal lawsuit

against defendant alleging hostile environment discrimination and for her

actions as vice president of the collective negotiations representative of certain 

of defendant's employees, and because she rebuffed defendant Mayor James M. 

Davis's (Davis) alleged sexually harassing conduct.

1

 The complaint asserts five 

claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -

50, and causes of action for breach of contract, breach of the covenant of good 

faith and fair dealing, and for violations of Title VII of the Civil Rights Act of 

1964, as amended, 42 U.S.C. § 2000e-1 to -17. The complaint included claims 

against Davis that the court dismissed due to lack of prosecution. 

Plaintiff appeals from a February 3, 2020 order dismissing the complaint 

with prejudice pursuant to Rule 4:23-5(a)(2) and Rule 4:23-2 for plaintiff's 

alleged failure to provide discovery and failure to comply with court orders 

directing her production of discovery. She also appeals from a May 22, 2020 

order denying her motion for reconsideration of the dismissal order. Having 

reviewed the record in light of the applicable legal principles, we vacate the 

1 We refer to the allegations in plaintiff's amended complaint, which was filed 

on February 23, 2018.
3

A-3993-19

February 3, 2020 order dismissing the complaint with prejudice and remand for 

further proceedings. Because we vacate the February 3, 2020 order, it is 

unnecessary to consider plaintiff's challenge to the order denying her motion for 

reconsideration. 

Prior to addressing plaintiff's arguments, we consider defendant's claim

the appeal from the February 3, 2020 order should be dismissed as untimely 

under Rule 2:4-1(a). Defendant previously moved to dismiss the appeal from 

the February 3, 2020 order on the same grounds as those asserted here, and this 

court entered a July 23, 2020 order denying the motion. Defendant filed a 

subsequent motion to dismiss the appeal as untimely and moot, and this court

denied the motion, explaining "[d]efendant's prior motion to dismiss the appeal 

as untimely was denied on July 23, 2020. This motion, which essentially seeks 

reconsideration, was not filed within [ten] days and is untimely. See R. 2:11-

6." 

Defendant's persistence in again seeking a dismissal of the appeal from 

the February 3, 2020 order based on timeliness grounds will not be rewarded. 

We opt not to address again an argument we have previously rejected twice, first 

on the merits and second because defendant's request for reconsideration of our 

initial rejection of its dismissal motion was procedurally barred. See, e.g., 
4

A-3993-19

Lombardi v. Masso, 207 N.J. 517, 538 (2011) ("The law of the case doctrine 

teaches us that a legal decision made in a particular matter 'should be respected 

by all other lower or equal courts during the pendency of that case.'" (quoting 

Lanzet v. Greenberg, 126 N.J. 168, 192 (1991))). For that reason alone, we 

reject defendant's claim we should not address the merits of plaintiff's challenge 

to the February 3, 2020 order.

Moreover, based on our review of the record, even assuming plaintiff's 

notice of appeal from the February 3, 2020 order was untimely under Rule 2:4-

1(a), we otherwise exercise our discretion to consider plaintiff's notice of appeal 

as a motion for leave to file a notice of appeal out of time and grant the motion. 

As defendant acknowledges, plaintiff timely filed the notice of appeal from the 

order denying the motion for reconsideration of the February 3, 2020 dismissal

order, and our consideration of the dismissal order is essential to the resolution 

of the issues presented by plaintiff's timely appeal from the order denying her 

reconsideration motion. See, e.g., Potomac Aviation, LLC v. Port Auth. of N.Y. 

& N.J., 413 N.J. Super. 212, 221-22 (App. Div. 2010) (exercising the court's 

discretion to extend the time for filing an appeal from a summary judgment order 

where only the appeal from the denial of a reconsideration motion was timely, 

and the substantive issues presented and the judge's rulings and reasoning on 
5

A-3993-19

both motions were the same). We therefore address plaintiff's appeal on the 

merits.

Plaintiff primarily argues the court erred by granting defendant's motion 

to dismiss the complaint with prejudice pursuant to Rule 4:23-5(a)(2). Plaintiff 

contends defendant was not entitled to relief under the Rule because defendant 

failed to first obtain an order dismissing the complaint without prejudice and 

otherwise did not comply with the procedural requirements of Rule 4:23-5(a)(1). 

See, e.g., Thabo v. Z Transp., 452 N.J. Super. 359, 369 (App. Div. 2017) 

(explaining Rule 4:23-5's "two-step procedural paradigm . . . must be strictly

adhered to before the sanction of dismissal of a complaint with prejudice for 

failing to answer interrogatories or provide other discovery can be imposed"). 

As the motion court correctly recognized in its statement of reasons 

denying plaintiff's reconsideration motion, it erred to the extent it entered the

February 3, 2020 dismissal order under Rule 4:23-5(a)(2). Defendant was not 

entitled to a dismissal with prejudice under Rule 4:23-5(a)(2) because it did not 

comply with the procedural prerequisites for such relief in Rule 4:23-5(a)(1). 

See Thabo, 452 N.J. Super. at 368-71. 

The court, however, explained its February 3, 2020 order also dismissed 

the complaint with prejudice pursuant to Rule 4:23-2(b)(3), which permits a 
6

A-3993-19

court to strike a pleading "with or without prejudice" where "a party fails to obey 

an order to provide or permit discovery." R. 4:23-2(b)(3). The court therefore 

denied defendant's motion for reconsideration, finding the February 3, 2020 

dismissal order was properly entered in accordance with Rule 4:23-2(b)(3).

Because the court concluded dismissal of the complaint was not proper

under Rule 4:23-5(a)(2), it is unnecessary to address plaintiff's claim the

February 3, 2020 and May 22, 2020 orders should be reversed based on the 

court's misapplication of the Rule. Any claim the court erred by dismissing the 

complaint pursuant to Rule 4:23-5(a)(2) is moot because, in the end, the court 

did not dismiss the complaint pursuant to the Rule. Instead, the court made clear 

it entered the February 3, 2020 dismissal order pursuant only to Rule 4:23-

2(b)(3). As a result, the singular issue presented is whether the court erred by 

dismissing the complaint with prejudice in accordance with Rule 4:23-2(b)(3).

I.

During oral argument on defendant's motion to dismiss the complaint, the 

court observed the "case has a long and tortured history . . . with regard to 

discovery . . . deficiencies." To be sure, discovery proceeded slowly in part 

because plaintiff changed attorneys during the course of the litigation, 

successively using three different attorneys to prosecute her case prior to its 
7

A-3993-19

dismissal on February 3, 2020, and plaintiff's responses to defendant's discovery 

demands were not timely provided. Ultimately, however, the court dismissed 

the complaint with prejudice pursuant to Rule 4:23-2(b)(3), which permits 

dismissal of a complaint with prejudice based on a plaintiff's failure to comply 

with court orders. Abtrax Pharms., Inc. v. Elkins-Sinn, 139 N.J. 499, 513-14 

(1995) (quoting R. 4:23-2(b)). 

Here, we focus on the court's August 15, 2019 and November 8, 2019 case 

management and discovery orders because they are the only court orders in the 

record directing plaintiff's compliance with her discovery obligations, and they 

are the orders the court, at least in part, relied on to support its dismissal of the 

complaint with prejudice under Rule 4:23-2(b)(3). Based on the record 

presented on appeal, we find it appropriate to detail the facts pertinent to the 

entry of the orders and plaintiff's alleged failure to comply with them.

The Complaint

Plaintiff's complaint alleges she was employed by defendant for sixteen

years, from 2001 to 2016, and, during her employment, she served as "the duly 

elected [v]ice [p]resident" of a collective negotiations representative of 

employees working for defendant. Plaintiff alleges her employment was 

terminated in 2016 in retaliation for actions she took on behalf of the employees 
8

A-3993-19

in the collective negotiations unit and in response to a 2014 federal lawsuit she 

filed against defendant and two individuals. According to the complaint, 

plaintiff's federal lawsuit claimed she was subject to unlawful hostile 

environment discrimination and retaliation. 

The complaint also alleges plaintiff had known Davis for thirty-five years, 

and she supported his efforts to become elected defendant's mayor in 2014. 

According to the complaint, following his election, Davis engaged in "a pattern 

and practice . . . of using the workplace to satisfy his personal sexual and 

romantic needs." More particularly, the complaint details a series of sexually 

suggestive, lurid, and inappropriate text messages Davis allegedly sent to 

plaintiff's phone. Plaintiff detailed the messages in her complaint and attached 

copies of the messages to the complaint. Plaintiff also alleged Davis offered to 

settle and resolve her federal litigation by defendant paying plaintiff $150,000 

if she "commit[ted] to involving herself romantically with" him. Plaintiff 

alleged the termination of her employment was motivated in part by her refusal 

to "succumb to . . . Davis'[s] sexual entreaties." 

Defendant's Initial Discovery Demands

Defendant filed its answer to the complaint in August 2018, and the court 

first ordered an August 17, 2019 discovery end date. In February 2019, 
9

A-3993-19

defendant obtained new counsel. In March 2019, seven months after defendant 

filed its answer, it served plaintiff's then-counsel with interrogatories and 

document demands. Plaintiff did not timely file responses to defendant's 

discovery requests. In June 2019, plaintiff obtained new counsel. 

In June 2019, defendant's counsel sent plaintiff's new counsel the 

interrogatories and document demands and granted plaintiff's counsel an 

additional thirty days to provide responses. Plaintiff's counsel did not provide 

responses within the extended time. In July 2019, defendant's counsel advised 

plaintiff's counsel that she intended to file a motion to dismiss the complaint if 

responses were not received by July 24, 2019. 

On July 22, 2019, defendant moved to extend the August 17, 2019 

discovery end date, in part because plaintiff's responses to defendant's discovery 

demands were overdue. Three days later, defendant also moved to dismiss the 

complaint without prejudice pursuant to Rule 4:23-5(a)(1). Plaintiff's counsel 

wrote to the court, stating the parties were engaged in settlement discussions in 

plaintiff's pending federal lawsuit against defendant. Plaintiff's counsel advised

settlement of the federal litigation would result in a resolution of the pending 

state court case. Counsel requested a case management conference and a ninetyday extension of the discovery end date.
10 A-3993-19

The August 15, 2019 Order

The court held a conference and entered an August 15, 2019 order that, in 

pertinent part, required plaintiff serve her written discovery demands by August 

21 and respond to defendant's written discovery demands by August 30. The 

order also required the completion of party and fact witness depositions by 

November 15, 2019. The court did not decide defendant's motion to dismiss the 

complaint based on plaintiff's failure to provide responses to its initial 

interrogatories and document demands. The motion to dismiss remained 

pending.

On August 15, defendant also served plaintiff with supplemental 

interrogatories and document demands. The record on appeal does not make 

clear whether the August 15, 2019 order directing that plaintiff supply responses 

to defendant's written discovery demands by August 30 also applied to 

defendant's supplemental discovery demands. In an August 30, 2019 order, the 

court granted defendant's motion to extend the discovery end date until 

November 15. 
11 A-3993-19

Discovery Following the August 15, 2019 Order

On September 10, 2019, plaintiff's counsel served plaintiff's responses to 

defendant's initial interrogatories and document demands. In her responses to 

three of the document demands, plaintiff referred defendant to documents she 

produced to defendant in the federal litigation. In response to one of those three

document demands—which requested plaintiff produce text messages between 

plaintiff and defendant—plaintiff also referred defendant to the text messages 

annexed to the complaint.2 In response to document demands requesting "phone 

records" between plaintiff and Davis "from January 1, 2012 to the present," 

plaintiff stated she did not possess such records. 

In a September 11, 2019 letter to the court, plaintiff's counsel explained

the responses to defendant's discovery demands were delivered on September 

10—ten days after the due date in the August 15 order—and offered a reason for 

the delay; counsel stated plaintiff's son had been "gravely ill and hospitalized in 

the ICU." Plaintiff's counsel requested that the court advise her of the status of 

defendant's pending motion to dismiss the complaint based on the alleged failure 

to provide discovery. On September 11, defendant withdrew its motion, and its 

2

 Annexed as an exhibit to the complaint included in plaintiff's appendix on 

appeal are twelve pages of alleged text messages between plaintiff and Davis. 
12 A-3993-19

counsel advised the court it was reviewing plaintiff's discovery responses "for 

responsiveness."

Plaintiff did not serve her written discovery demands in accordance with 

the August 21 deadline set forth in the August 15 order. Instead, plaintiff's 

counsel served plaintiff's written discovery demands more than one month late, 

on September 25.

3

 Plaintiff's counsel also filed a motion seeking leave to serve 

her discovery demands out of time. Plaintiff's counsel certified the demands

were delivered late because she was new to the case, she had been involved in 

an automobile accident, and plaintiff's son had been in the hospital. The court 

later denied plaintiff's motion because it did not include "a list of proposed 

discovery and deadlines" as required by Rule 4:24-1(c). 

In a September 25, 2019 letter to plaintiff's counsel, defendant's counsel 

detailed what she claimed were deficiencies in plaintiff's responses to 

defendant's interrogatories and document demands. On the same date, defendant 

served plaintiff's counsel with Health Insurance Portability and Accountability 

Act of 1996 (HIPAA), 42 U.S.C. § 1320, medical record release forms (HIPAA 

forms) for plaintiff to sign and return. 

3

 We note the parties and court variously, and inconsistently, refer to plaintiff's 

written discovery demands as having been served on September 22 and 25, 2019. 
13 A-3993-19

In early October, defendant filed a motion to compel the deposition of 

plaintiff because defense counsel had not received dates for the deposition from 

plaintiff's counsel. Six days later, defendant withdrew the motion because 

plaintiff's deposition was scheduled for a date later in the month. 

On October 16, 2019, plaintiff executed several HIPAA forms; however, 

she modified the forms by limiting the timeframe of the records to be released. 

On the same date, defense counsel advised plaintiff's counsel that plaintiff must 

execute the HIPAA forms for the entire timeframe requested; reminded 

plaintiff's counsel plaintiff's responses to interrogatories and document requests 

were deficient because they referred defense counsel to documents in the federal 

litigation; and noted plaintiff owed defendant responses to the supplemental

written discovery demands that were served on August 15. 

On October 23, 2019, plaintiff again moved for leave to extend discovery 

to serve her written discovery demands outside of the time prescribed in the 

August 15 order. As reasons for the delay in timely serving the demands, 

plaintiff's counsel certified: she had only recently commenced her participation 
14 A-3993-19

in the case; she had been in a car accident; she had been busy with other matters;

and plaintiff's son was in the hospital.4

The next day, defense counsel deposed plaintiff. During the deposition, 

plaintiff testified she did not know the location of the phone she had used when 

she exchanged text messages with Davis, and she had not seen the phone in a 

few years. Defense counsel reserved the right to re-depose plaintiff because 

plaintiff had not returned the HIPAA forms or complete responses to defendant's 

written discovery demands prior to the deposition. In response to plaintiff's 

motion to extend the time within which she could serve written discovery 

demands, defendant's counsel sent the court a letter noting she reserved her right 

to depose plaintiff again due to plaintiff's alleged failure to properly provide the 

HIPAA forms.

The November 8, 2019 Order

On October 28, 2019, defendant again moved to dismiss the complaint for 

failure to make discovery based on plaintiff's alleged failure to respond to 

written discovery demands and provide signed HIPAA forms. On November 8, 

4

 The record on appeal does not include an order directly disposing of plaintiff's 

motion. However, in its November 8, 2019 order, the court directs defendant to 

respond "to plaintiff's . . . written discovery demands no later than December 

20, 2019." 
15 A-3993-19

2019, defendant withdrew the motion, and the court entered an order extending

the discovery end date to March 20, 2020 and scheduling a trial date for June 

29, 2020.

The November 8, 2019 order also directed that: defense counsel serve 

revised HIPAA forms by November 22, 2019;

5 defendant respond to plaintiff's 

discovery demands by December 20, 2019; the parties complete non-party 

witness depositions by January 17, 2020; the parties complete the re-depositions

of plaintiff and all fact witnesses by January 24, 2020; and the parties complete

expert reports and expert depositions by specified dates leading up to March 20, 

2020. Importantly, the November 8, 2019 order imposed only two requirements 

directly on plaintiff; the order required plaintiff serve fully-executed HIPAA 

forms on defendant by December 6, 2019, and respond to defense counsel's 

September 25, 2019 "deficiency letter regarding written discovery responses by 

November 29, 2019."

6

 The order did not require that plaintiff provide responses 

to any written discovery demands previously served by defendant.

5

 The record on appeal does not reflect the reason the court ordered revised 

HIPAA forms.

6 The transcript of the November 8, 2019 hearing is not included in the record 

on appeal. It is claimed that during the hearing, the court orally advised plaintiff 

it would dismiss the complaint with prejudice if she did not serve fully-executed 
16 A-3993-19

Discovery Following the November 8, 2019 Order

 On November 19, 2019, defense counsel sent HIPAA forms to plaintiff's 

counsel. On November 29, 2019, the day plaintiff's response to defense 

counsel's deficiency letter was due, plaintiff's counsel advised defense counsel 

she could not meet the deadline because plaintiff was in the hospital. On 

December 3, 2019, defense counsel reminded plaintiff's counsel the November 

8, 2019 order required plaintiff to serve her response to the deficiency letter by 

November 29, 2019, and advised plaintiff's counsel she would file a motion to 

dismiss the complaint with prejudice. Plaintiff's counsel replied, stating 

plaintiff was discharged from the hospital on December 2, 2019, and counsel

needed plaintiff's help preparing the response. Plaintiff's counsel also stated she 

was "not with a big law firm" and had "other cases, not just this one."

On December 3, 2019, defense counsel also served a notice to re-depose 

plaintiff on January 14, 2020. Additionally, according to defendant's counsel, 

during a December 5, 2019 conference with the federal court in the federal 

litigation, plaintiff's counsel said plaintiff "found" her phone. On December 17, 

HIPAA forms by December 6, 2019. We note the November 8, 2019 order does 

not state the complaint would be dismissed if plaintiff failed to provide the 

release forms by the December 6, 2019 deadline.
17 A-3993-19

2019, defense counsel served additional HIPAA forms after responses to 

discovery demands provided by plaintiff revealed previously undisclosed 

doctors she had seen. 

In a December 20, 2019 email, plaintiff's counsel advised defendant's 

counsel the noticed January 14, 2020 re-deposition of plaintiff "will not work 

for us," and plaintiff's counsel was "scheduling depositions on a multi-attorney 

case and [would] get back to" defendant's counsel. On December 23, 2019, 

defense counsel served a notice to re-depose plaintiff on January 16, 2020. 

Defendant's Motion to Dismiss the Complaint with Prejudice

On December 23, 2019, defendant moved to dismiss the complaint with 

prejudice pursuant to Rule 4:23-5(a)(2) and based on plaintiff's alleged 

violations of the August 15 and November 8 orders.7 Defendant's motion was 

founded on five separate claims. 

First, defendant argued plaintiff failed to timely provide the signed 

HIPAA forms in accordance with the November 8, 2019 order, and failed to 

provide "Apple logs regarding the 'texts' . . . in response to [defendant's] August 

7

 Defendant's notice of motion to dismiss the complaint refers only to Rule 4:23-

5. Its papers in support of the motion, however, make clear it sought dismissal 

based on plaintiff's alleged violations of the August 15 and November 8, 2019 

orders as well. 
18 A-3993-19

15, 2019 supplemental document request." Defendant alleged those failures

effectively prevented defendant from re-deposing plaintiff by the January 24, 

2020 deadline in the November 8, 2019 order. 

Second, defendant argued that on November 18, 2019, it served plaintiff 

with revised HIPAA forms in accordance with the November 8 order and two 

additional HIPAA forms in December based on documents plaintiff provided, 

and plaintiff had not returned executed forms by December 6 as required by the 

November order. 

Third, defendant alleged plaintiff failed to respond to defendant's 

counsel's September 25, 2019 deficiency letter as required by the November 8 

order. 

Fourth, defendant asserted plaintiff failed to depose or schedule the 

depositions of any fact witnesses in accordance with the November 8 order.

Last, defendant claimed plaintiff failed to produce all requested 

documents, including all text messages between her and Davis, and failed to 

produce her phone, which defendant sought for a forensic examination. 

Plaintiff's counsel filed a January 22, 2020 certification in response to 

defendant's motion. In reply to defendant's first two claims—that plaintiff failed 

to provide signed HIPAA forms by December 5 as required by the November 8 
19 A-3993-19

order, and failed to provide Apple text logs—plaintiff's counsel stated she 

received "most of the executed HIPAA forms" from plaintiff on December 5, 

2019, but she "overlooked sending them to . . . defendant's counsel, and 

[defense] counsel never asked . . . for them before bringing the motion." 

Plaintiff's counsel sent the executed HIPAA forms to defendant's counsel on 

January 3, 2020, almost a month after they were provided by plaintiff and were 

due under the November 8 order, and eleven days after defendant filed its motion 

to dismiss the complaint. Plaintiff's counsel represented that at the time of her 

January 22, 2020 certification, she had "returned all the executed HIPAA forms 

to defendant."

Plaintiff's counsel also disputed defendant's claimed need for Apple logs 

regarding plaintiff's text messages, explaining defendant obtained 28,000 pages 

of plaintiff's cellphone records from her cellphone carrier.8 Plaintiff's counsel 

also referred to plaintiff's deposition testimony that she had been advised "the 

text messages were too old for her to get a text log using the 

website . . . defendant[] requested that she use." Counsel asserted plaintiff 

could not "produce what does not exist," and questioned defendant's claimed

8

 Neither the August 15 nor November 8 order directed plaintiff to produce text 

message logs.
20 A-3993-19

need for cellphone data because Davis admitted sending the offensive text 

messages annexed to the complaint. 

Plaintiff's counsel's certification disputed defendant's third claim that

plaintiff failed to comply with the November 8 order's directive that she respond 

to defendant's September 25, 2019 deficiency letter by November 29. Plaintiff's 

counsel responded to the deficiency letter, albeit almost two months late, on 

January 22, 2020. 

Plaintiff's counsel also disputed defendant's fourth claim that she failed to 

depose or schedule the depositions of any fact witnesses in accordance with the 

November 8 order. Plaintiff's counsel represented she issued deposition notices 

"in the fall." She explained, however, that she "had not had a chance to go 

through [defendant's] discovery responses," which she described as 

"voluminous." She also asserted defendant failed to provide Davis's personnel 

file in its response to plaintiff's discovery demands, and that defendant had "only 

just produced documents on December 20." Plaintiff's counsel stated she 

"would like to review [defendant's] responses before doing depositions," and 

"[t]he previous schedule [did] not permit this."

Plaintiff's counsel further addressed defendant's fifth claim—that plaintiff 

failed to produce all requested documents, including the text messages between 
21 A-3993-19

her and Davis, and failed to produce her phone. Counsel explained "plaintiff 

produced all text messages between herself and Davis," and referred defendant 

by document number to the text messages provided in response to defendant's 

document demands. Counsel also stated plaintiff does not have the phone 

defendant requested that she produce.

Plaintiff's counsel also offered a more general explanation for the delays 

in providing the requested discovery and the failure to strictly comply with the 

requirements of the November 8, 2019 order. Plaintiff's counsel stated:

[Plaintiff] was hospitalized on Thanksgiving, and her 

husband had to have surgery shortly afterwards. . . . I 

have been tied up preparing an appellate brief, I have 

been suffering from debilitating migraine headaches 

likely related to a rollover car crash in August, I had to 

attend a funeral earlier this month of a dear friend, and

I have discovery closing in a federal case that is much 

older than this case (2016). I also have a federal trial 

for which the pretrial conference is scheduled the 

second week in February. In addition, I am the 

caregiver for my brother who is a paraplegic. I am 

overloaded with work.

Plaintiff's counsel certified plaintiff was "unhappy with [her] representation and 

has instructed [her] to file a motion for withdrawal." Plaintiff's counsel opined 

the disruption "will harm" plaintiff, but counsel stated she would file the motion 

for withdrawal "shortly."
22 A-3993-19

On January 29, 2020, the court heard argument on defendant's motion and 

reserved decision. On February 3, 2020, plaintiff's counsel filed a February 1, 

2020 certification from plaintiff in opposition to the motion.9 Plaintiff offered 

an explanation for some of the delays in responding to defendant's discovery 

demands and in complying with the court's orders. Plaintiff stated her twentyfive-year-old son was gravely ill during August 2019 and was in the ICU of a 

hospital on a respirator for "over a week." Plaintiff was also admitted to the

hospital on Thanksgiving, and her husband had a December 10 surgical 

procedure. Plaintiff noted it was during the period from August through 

December that defendant filed numerous demands for information and 

documents and filed a series of motions. 

Plaintiff also noted that on December 5, 2019, defendant received "103 

pages in chronological order . . . of all text messages" and, on October 31, 2019, 

received "over 28,000 pages of log records of texts and calls from [her] phone 

and all [her] contacts for 8 years." Plaintiff disputed defendant's claim she could 

download Apple iMessage link information, explaining she had attempted to do 

so, but was advised by her cellphone carrier the information was no longer 

9

 Although plaintiff's certification was filed following argument on the motion, 

the court considered it. In its written statement of reasons on the reconsideration 

motion, the court references the certification.
23 A-3993-19

available because the telephone number she used when receiving texts from 

Davis "was no longer in use for this plaintiff." Plaintiff further explained she 

could not produce the phone defendant requested because she does not have it.

In a February 3, 2020 written statement of reasons, the court found 

dismissal with prejudice was appropriate under the circumstances because the 

discovery plaintiff provided was "untimely and piecemeal, at best"; another 

judge warned plaintiff on November 8, 2019 that her case would be dismissed 

with prejudice if she did not supply fully-executed HIPAA forms; plaintiff 

consistently failed to provide discovery and failed to comply with two court 

orders relating to discovery; and the case already had 216 more days of 

discovery than the Rules allotted for Track 3 cases. The court also found it 

"concerning that the phone containing the messages at the heart of this case 

cannot be found." The court found dismissal with prejudice was appropriate 

under Rule 4:23-5(a)(2) and Rule 4:23-2.

Plaintiff obtained new counsel, who filed a motion for reconsideration. 

Plaintiff's counsel argued the court erred by dismissing the complaint with 

prejudice because there was no order of dismissal without prejudice under Rule

4:23-5(a)(1), and defendant never moved to compel under Rule 4:23-5(c) before 

moving to dismiss with prejudice under Rule 4:23-5(a)(2). Plaintiff's counsel 
24 A-3993-19

also attached as exhibits five notices of deposition, dated October 17 and 

October 18, 2019, that plaintiff's prior counsel served on fact witnesses. 

Defendant opposed the motion, arguing the court properly dismissed the 

complaint with prejudice pursuant to Rules 4:23-5(a)(2) and 4:23-2. In addition 

to reiterating the many discovery issues in the case, defendant asserted plaintiff 

had an audio recording of a hearing, but she refused to provide it because it 

contained conversations between plaintiff and her attorney.10 

The court heard argument on the motion, and, on May 22, 2020, denied 

plaintiff's motion for reconsideration. As noted, in its written statement of 

reasons, the court recognized it erred in part by dismissing the complaint with 

prejudice under Rule 4:23-5(a)(2) because the complaint had not previously 

been dismissed without prejudice in accordance with Rule 4:23-5(a)(1). The 

court found the error harmless because it also had dismissed the complaint with 

prejudice pursuant to Rule 4:23-2(b)(3). 

The court observed that in July 2019, defendant moved to dismiss without 

prejudice under Rule 4:23-5(a)(1) for plaintiff's failure to respond to 

interrogatories and produce documents, and the court instead held a case 

10

 Plaintiff referred to the hearing in her responses to defendant's supplemental 

discovery requests. 
25 A-3993-19

management conference and entered an August 15, 2019 case management 

order. The court found plaintiff then violated the August 15, 2019 order by 

failing to serve her written discovery demands by August 30, 2019, and plaintiff

sought an extension of the discovery deadline from the court, claiming she could 

not meet the deadline because she and counsel had various health and familyrelated issues. 

The court explained that in October, defendant moved a second time to 

dismiss based on plaintiff's allegedly deficient answers to discovery requests,

and defendant withdrew the motion when the court entered a November 8, 2019 

order extending discovery and revising the dates discovery was due. The court 

found that during the November 8 hearing another judge warned plaintiff her 

case would be dismissed with prejudice if she did not provide fully-executed 

HIPAA forms. The court stated it received a letter from defense counsel, 

advising that plaintiff served the HIPAA forms late and failed to fully-execute 

all of them. The court, however, made no mention of plaintiff's counsel's

certification stating all the HIPAA authorizations had been provided, albeit late 

because of her workload, illness, and the fact that she "overlooked" providing 

the forms plaintiff timely provided to her on December 5, 2019. The court

acknowledged plaintiff's counsel had represented the HIPAA forms were 
26 A-3993-19

provided on January 3, 2020, twenty-eight days late.11 And, in her certification

opposing defendant's motion, plaintiff's counsel represented that all of the 

outstanding HIPAA forms had been provided to defendant's counsel.

The court also referred to the circumstances surrounding the requests for

the production of plaintiff's phone and text messages. The court observed it was 

unclear whether plaintiff actually had her phone. The court found plaintiff 

represented to the judge in the federal litigation that she had found the phone 

she used to exchange texts. The record, however, reflects only that plaintiff's 

counsel told the federal judge plaintiff had found her phone. There is no 

evidence plaintiff made any statement to the federal judge concerning the status 

of her phone, and in her February 1, 2020 certification, plaintiff states she does 

not have the phone. Indeed, the court noted plaintiff submitted a March 18, 

11

 Defendant's counsel advised two of the HIPAA forms had not been signed. 

It is unclear whether the forms that were completed were those first served by 

defendant in December 2019, following the November 20, 2019 due date for 

defendant's service of revised HIPAA forms under the November 8 order. The 

record does not show defendant obtained permission from the court to serve 

additional HIPAA forms following the November 20 deadline in the order. The 

record also does not include an order directing that plaintiff provide executed 

HIPAA forms that were first served on her following the November 20, 2019 

deadline, and it appears defendant served two HIPAA forms on plaintiff after 

the December 6, 2019 due date for her return of fully-executed forms set forth 

in the November 8 order. Plaintiff could not have violated the November 8 order 

by failing to return executed HIPAA forms that were first provided to her 

following the December 6 due date set forth in the order. 
27 A-3993-19

2017 receipt for the purchase of a new iPhone that the court found "suggest[ed]," 

but did not dispositively prove, plaintiff lost the phone she used to exchange text 

messages with Davis. 

The court also parsed statements made by plaintiff and her then-counsel 

regarding their production of all text messages between plaintiff and Davis, 

found the statements appeared contradictory, and concluded it was "unclear 

whether [plaintiff] turned over all of her text messages." In apparent recognition 

the record presented a fact issue as to whether plaintiff had turned over all of 

the pertinent text messages that the court found "go[] to the heart of [p]laintiff's 

case," the court observed only that "[i]f less than all of the texts have been 

served, then [p]laintiff is withholding discovery in violation of the court's 

orders." 

The court further found plaintiff's discovery responses were deficient 

because they referred defendant to documents that were produced discovery in 

the federal litigation, failed to identify specific documents, and stated documents 

were already in defendant's possession. The court found plaintiff failed to 

provide documents responsive to defendant's supplemental document demands 

that "go[] to the heart of [p]laintiff's case," including "iMessage logs containing 

the text messages supporting" plaintiff's sexual harassment and wrongful 
28 A-3993-19

termination claims. The court rejected plaintiff's claim, contained in her 

certification, that she could not retrieve the logs because they were no longer 

available. The court accepted defendant's counsel's argument plaintiff did not 

follow the appropriate procedure to obtain the logs from the carrier, stating it 

"agree[d] with [d]efendant that [plaintiff's] confusion does not remove her 

obligation to produce" the logs. 

The court found "it is difficult to ascertain[, with respect to the] 

outstanding discovery[,] where counsel's errors end and where [p]laintiff's 

actions begin," but then incongruously, and without reference to any action or 

inaction by plaintiff, concluded plaintiff was not a "blameless client." The court 

found neither plaintiff nor her prior counsel "appears to have been particularly 

diligent in serving or responding to discovery in this matter," and concluded that 

"[a]t worst, [p]laintiff's actions[, which the court did not define,] appear 

contumacious and willful." 

The court concluded plaintiff "simply has not complied with the rules of 

discovery, warranting dismissal of her case with prejudice." The court entered 

the May 22, 2020 order denying plaintiff's motion for reconsideration of the 

February 3, 2020 order dismissing the complaint with prejudice. This appeal 

followed. 
29 A-3993-19

II.

"[T]he standard of review for dismissal of a complaint with prejudice for 

discovery misconduct is whether the trial court abused its discretion, a standard 

that cautions appellate courts not to interfere unless an injustice appears to have 

been done." Abtrax Pharms., 139 N.J. at 517. A court abuses its discretion 

when its "decision [was] made without a rational explanation, inexplicably 

departed from established policies, or rested on an impermissible basis." United

States ex rel. U.S. Dep't of Agric. v. Scurry, 193 N.J. 492, 504 (2008) (alteration

in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Our "[d]iscovery rules are designed 'to further the public policies of

expeditious handling of cases, avoiding stale evidence, and providing

uniformity, predictability[,] and security in the conduct of litigation.'" Abtrax

Pharms., 139 N.J. at 512 (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)). 

"It necessarily follows, if such rules are to be effective, that the courts impose 

appropriate sanctions for violations thereof." Oliviero v. Porter Hayden Co.,

241 N.J. Super. 381, 387 (App. Div. 1990) (quoting Evtush v. Hudson Bus

Transp. Co., 7 N.J. 167, 173 (1951)).
30 A-3993-19

Rule 4:23-2 allows for dismissal of a complaint "with or without 

prejudice" in response to a party's failure to comply with an order to provide 

discovery:

If a party . . . fails to obey an order to provide or permit 

discovery, including an order made under [Rule] 4:23-

1, the court in which the action is pending may make 

such orders in regard to the failure as are just, and 

among others the following:

(1) An order that the matters regarding which the order 

was made or any other designated facts shall be taken 

to be established for the purposes of the action in 

accordance with the claim of the party obtaining the 

order;

(2) An order refusing to allow the disobedient party to 

support or oppose designated claims or defenses, or 

prohibiting the introduction of designated matters in 

evidence;

(3) An order striking out pleadings or parts thereof, or 

staying further proceedings until the order is obeyed, or 

dismissing the action or proceeding or any part thereof 

with or without prejudice, or rendering a judgment by 

default against the disobedient party;

(4) In lieu of any of the foregoing orders or in addition 

thereto, an order treating as a contempt of court the 

failure to obey any orders.

In lieu of any of the foregoing orders or in addition 

thereto, the court shall require the party failing to obey 

the order to pay the reasonable expenses, including 

attorney's fees, caused by the failure, unless the court 
31 A-3993-19

finds that the failure was substantially justified or that 

other circumstances make an award of expenses unjust.

[R. 4:23-2(b).]

A "trial court has an array of available remedies to enforce compliance 

with a court rule or one of its orders." Williams v. Am. Auto Logistics, 226 N.J. 

117, 124 (2016) (quoting Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 

115 (2005)). A "court must . . . carefully weigh what sanction is the appropriate 

one, choosing the approach that imposes a sanction consistent with fundamental 

fairness to both parties." Id. at 125 (alteration in original) (quoting Robertet 

Flavors, 203 N.J. at 282-83). In its selection of a sanction, a court must consider 

"[t]he varying levels of culpability of delinquent parties," Georgis v. Scarpa,

226 N.J. Super. 244, 251 (App. Div. 1988), and "[t]he extent to which [one

party] has impaired [the other's] case may guide the court in determining

whether less severe sanctions will suffice," Williams, 226 N.J. at 125 (second

and third alterations in original) (quoting Gonzalez, 185 N.J. at 116); see also

Casinelli v. Manglapus, 181 N.J. 354, 365 (2004) (explaining a determination

whether dismissal is appropriate requires an assessment of the "facts, including 

the willfulness of the violation, the ability of plaintiff to produce the 

[outstanding discovery], the proximity of trial, and prejudice to the adversary"). 
32 A-3993-19

The "ultimate sanction of dismissal" is to be used "only sparingly." 

Abtrax Pharms., 139 N.J. at 514 (quoting Zaccardi, 88 N.J. at 253). "If a lesser 

sanction than dismissal suffices to erase the prejudice to the non-delinquent 

party, dismissal of the complaint is not appropriate and constitutes an abuse of 

discretion." Georgis, 226 N.J. Super. at 251; see also Robertet Flavors, 203 N.J.

at 274 (recognizing dismissal as the "ultimate sanction" to "be ordered only 

when no lesser sanction will suffice to erase the prejudice" (citations omitted)); 

Il Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004) (explaining

a dismissal of a claim for failure to comply with discovery is "the last and least 

favorable option"). "The dismissal of a party's cause of action, with prejudice,

is drastic and is generally not to be invoked except in those cases in which the

order for discovery goes to the very foundation of the cause of action, or where

the refusal to comply is deliberate and contumacious." Abtrax Pharms., 139 N.J.

at 514 (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)).

Here, the court dismissed plaintiff's complaint pursuant to Rule 4:23-

2(b)(3) which, as noted, permits a dismissal with prejudice where "a party fails 

to obey an order to provide or permit discovery." The court's decision, however, 

more broadly addresses plaintiff's alleged failures to generally comply with its 

discovery obligations under the Rules during the litigation. In fact, the court 
33 A-3993-19

concludes plaintiff's complaint should be dismissed with prejudice because she 

failed to comply with the "rules of discovery" and not based on the more 

particularized finding required for relief under Rule 4:23-2(b)(3)—that 

dismissal with prejudice is appropriate based on plaintiff's failure "to obey an 

order to provide or permit discovery." 

The record shows plaintiff and her counsel did not fully comply with the 

deadlines for responding to discovery in accordance with the applicable rules. 

Defendant may have properly moved for relief based on those failures—and in 

fact moved on a number of occasions for relief based on them—under different 

rules. See, e.g., R. 4:23-1 (providing for a motion to compel discovery based 

on a party's failure to respond or provision of an evasive or incomplete 

response); R. 4:23-5 (providing for a motion to strike pleadings based on a 

failure to provide discovery). Here, however, defendant sought and obtained the 

dismissal order under Rule 4:23-2(b)(3), which permits a dismissal based solely 

on a party's failure to obey a court order. See Abtrax Pharms., 139 N.J. at 513 

(observing "Rule 4:23-2(b) authorizes the imposition of sanctions for failing to 

comply with a court order"); Rubin v. Tress, 464 N.J. Super. 49, 56 (App. Div. 

2020) (stating that under Rule 4:23-2(b), one of the sanctions a court may 

impose on a party that fails "to obey an order to provide or permit discovery" is 
34 A-3993-19

to dismiss the complaint "with or without prejudice" (quoting R. 4:23-2(b))). 

Thus, the court could only properly impose the ultimate sanction of dismissal 

with prejudice under Rule 4:23-2(b)(3) based on plaintiff's failure to comply 

with a court order. See Abtrax Pharms., 139 N.J. at 513-14; Rubin, 464 N.J. 

Super. at 56. 

The court's decision to dismiss the complaint with prejudice under Rule

4:23-2(b)(3) was not based solely on plaintiff's alleged violations of court 

orders. For example, the court dismissed the complaint with prejudice in part 

based on plaintiff's prior failures to provide discovery generally as required by 

the rules, and also due to plaintiff's alleged failure to produce her phone, texts, 

and iMessage logs. Indeed, the court weighed heavily the alleged failure to 

provide those items, finding they went to the essence of plaintiff's case—her 

claim she was sexually harassed via text message by Davis.12 The record, 

however, is devoid of an order directing plaintiff's production of any of those 

items. If those items were not provided in response to a discovery demand, 

12

 The court's finding the text messages went to the essence of plaintiff's case 

appears not to be entirely accurate. The text messages appear to be at the center 

of her sexual discrimination claims under the LAD, but plaintiff's complaint 

includes other claims, including that she was terminated in retaliation for 

activities as vice president of the collective negotiations representative of 

defendant's employees. 
35 A-3993-19

defendant should have moved either for any order compelling plaintiff to 

provide responses, see R. 4:23-1, or to dismiss the complaint without prejudice 

pursuant to Rule 4:23-5(a)(1), based on the alleged failure. Lacking any order 

directing that plaintiff produce those items, defendant was not entitled to relief 

under Rule 4:23-2(b)(3) based on plaintiff's alleged failure to produce them. 

The court also erred by relying on plaintiff's purported failure to provide 

the items because, as the court acknowledged, there was conflicting evidence 

presented as to whether plaintiff was in possession of, or had access to, them. It 

was error for the court to find plaintiff failed to comply with her discovery 

obligations because she presented competent evidence—her and her thencounsel's certifications—asserting she did not have any additional text messages 

or her phone, and she could not access the message logs. To the extent defendant 

presented any competent evidence disputing plaintiff's assertions, the court 

should have resolved any pertinent fact issues at an evidentiary hearing. See

Walker v. Choudhary, 425 N.J. Super. 135, 147-48 (App. Div. 2012). Instead, 

the court made credibility determinations—rejecting plaintiff's version of the 

pertinent events—based on conflicting certifications. See K.A.F. v. D.L.M., 437 

N.J. Super. 123, 137-38 (App. Div. 2014) (explaining a court cannot make 
36 A-3993-19

credibility determinations based on conflicting affidavits or certifications). It 

was error for the court to do so. Ibid.

The court also erred by finding a violation of the August 15, 2019 order 

required dismissal of the complaint with prejudice. The August 15 order 

directed plaintiff to do only two things. It first required plaintiff to serve 

discovery responses to defendant by August 30, 2019. Plaintiff failed to comply 

with the requirement. She served her discovery responses ten days late, and, in 

response, defendant withdrew a motion it had filed to dismiss the complaint 

based on the violation of the order. When defendant filed its motion to dismiss 

with prejudice on December 23, 2019 under Rule 4:23-2(b)(3), plaintiff was not 

in violation of the portion of the August 15 order requiring that she respond to 

defendant's discovery demands, and defendant could not demonstrate any 

prejudice resulting from the tardy responses. Indeed, as noted, after receiving 

the responses, defendant withdrew its then-pending motion to dismiss the 

complaint, noting it intended to review the responses only for deficiencies. We 

are convinced the short delay in providing the discovery responses could not 

provide a proper basis for the ultimate sanction of dismissal ordered on February 

3, 2020.
37 A-3993-19

The August 15 order also required that plaintiff serve her discovery 

demands on defendant by August 21, 2019. Plaintiff ignored this requirement 

and served her discovery demands more than a month later, on September 25. 

Plaintiff recognized her failure; she moved for leave to serve her discovery 

demands out-of-time. The motion was subsequently denied on procedural 

grounds, and later refiled. Any issues related to the late delivery of the demands 

were resolved by the November 8 order which directed that defendant respond 

to plaintiff's discovery demands by December 20, 2019. Thus, by the time 

defendant filed its motion to dismiss the complaint with prejudice in late 

December 2019, and the court decided the motion on February 3, 2020, any 

issues related to the late service of the discovery demands had been resolved.

Moreover, although the motion court cited plaintiff's failure to timely 

serve her discovery demands by the deadline imposed by the August 15 order, a

dismissal of plaintiff's complaint with prejudice based on that failure is 

manifestly erroneous because plaintiff had no obligation to serve discovery 

demands in the first instance. The August 15 order did not require that plaintiff 

serve discovery demands. It provided only that plaintiff serve her discovery 

demands by a date certain, if she chose to serve them at all. An order dismissing 

a complaint with prejudice based on a plaintiff's failure to serve discovery
38 A-3993-19

demands is never appropriate because a lesser sanction for such a failure—

striking the discovery demands—is always available. See generally Georgis, 

226 N.J. Super. at 251 (noting it is an abuse of discretion to dismiss a complaint 

with prejudice where a lesser sanction than dismissal is sufficient to erase any 

prejudice to defendant).

In sum, when defendant filed its motion to dismiss the complaint with 

prejudice, there is no evidence plaintiff was in violation of the August 15, 2019

order. As a result, any alleged violation of the August 15 order could not support 

imposition of the sanction of last resort—dismissal of plaintiff's complaint with 

prejudice on February 3, 2020. 

Similarly, and in pertinent part, the November 8, 2019 order required only 

that plaintiff provide signed HIPAA forms by December 6, 2019 and respond to 

defense counsel's deficiency letter regarding written discovery responses by 

November 29, 2019.13 It is undisputed plaintiff did not timely comply with the 

13 In part, the court found plaintiff violated the November 8, 2019 order by 

failing to provide responses to defendant's supplemental discovery demands by 

November 29, 2019. The court's finding is inaccurate and contradicted by the 

plain language of the order. The November 8 order required plaintiff's response 

to defendant's September 25, 2019 deficiency letter by November 29; the order 

makes no mention of a deadline for plaintiff's responses to the August 2019 

supplemental written discovery demands, and the order does not require that 

plaintiff provide responses to those demands. 
39 A-3993-19

deadlines imposed by the court's order. By early January 2020, however, 

plaintiff's counsel delivered the HIPAA forms and, prior to oral argument on 

defendant's motion to dismiss, plaintiff's counsel delivered a response to the 

deficiency letter. As such, the record before the court when it decided the 

dismissal motion was that plaintiff supplied the requisite HIPAA forms and 

letter as required by the November 8 order, but delivered each a few weeks late. 

The record also showed plaintiff's counsel explained that illness and the press 

of other business in her practice delayed the provision of the items in accordance 

with the deadlines in the order. In her certification, plaintiff also addressed the 

circumstances surrounding the delivery of discovery. 

In its decision, the court did not consider or address plaintiff's counsel's 

explanation for the delay in providing the HIPAA forms and letter; determine or 

make reasoned findings concerning the culpability of plaintiff or her thencounsel; or consider the manner in which the delay in providing the information

impaired defendant's case, if at all.14 See Williams, 226 N.J. at 125; Georgis,

14 The court made vague and confusing findings concerning plaintiff and her 

then-counsel's purported culpability for the delay in providing the deficiency 

letter and HIPAA forms in accordance with the November 8 order. The court 

did not actually find either plaintiff or her then-counsel acted willfully or 

contumaciously in failing comply with the November 8 order's deadlines. 

Instead, the court only concluded that "[a]t worst, [p]laintiff's actions appear 
40 A-3993-19

226 N.J. Super. at 251. The court also failed to address, consider, or decide 

whether any of the other available sanctions, short of a dismissal with prejudice, 

was appropriate to address plaintiff's late delivery of the only two items the 

November 8 order required that she provide. See Georgis, 226 N.J. Super. at

251. The court also failed to "carefully weigh what sanction is the appropriate 

one, choosing the approach that imposes a sanction consistent with fundamental 

fairness to both parties," Robertet Flavors, 203 N.J. at 282-83, considering that, 

by the time the motion was argued and decided, plaintiff and her counsel 

represented they were in full compliance with the court's orders.

We do not excuse any failure to comply with a court order, but we are 

convinced the court abused its discretion by failing to apply the appropriate legal 

standard in assessing and deciding defendant's motion for dismissal with 

prejudice under Rule 4:23-2(b)(3). See Scurry, 193 N.J. at 504. We therefore 

contumacious and willful." That vague finding is rendered even more confusing 

by the court's statement that "it is difficult to ascertain regarding the outstanding 

discovery where counsel's errors end and where [p]laintiff's actions begin." 

Those statements are untethered to any findings of fact concerning the actions 

or inactions of plaintiff, or her then-counsel. It is also unclear whether those 

statements are intended to apply generally to the court's determination that 

plaintiff failed to comply with discovery obligations under the rules or more 

specifically to any violation of the August 15 or November 8 orders. Of course, 

it is only a violation of the orders that provides a basis for relief under Rule

4:23-2(b)(3). 
41 A-3993-19

vacate the February 3, 2020 dismissal order and remand for reconsideration of 

defendant's motion in accordance with the standard applicable under the Rule. 

The court may in its discretion permit the submission of additional papers by 

the parties and shall hear oral argument. The court shall determine if an 

evidentiary hearing is required. We do not offer an opinion on the merits of 

defendant's motion. The remand court shall decide the motion based on the 

record presented. Because the motion court made credibility determinations, the 

matter shall be assigned to a different judge on remand. See R.L. v. Voytac, 199 

N.J. 285, 306 (2009). 

We do not address the merits of plaintiff's claim the court erred by denying 

its motion for reconsideration because we have determined the court abused its 

discretion by granting the dismissal motion in the first instance.

Vacated and remanded for further proceedings in accordance with this 

opinion. We do not retain jurisdiction.