KIRK SPARKS v. ERIC BARNES

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3117-21
KIRK SPARKS,
Plaintiff-Appellant,
v.
ERIC BARNES and
JONATHAN GILMORE,
Defendants-Respondents.
____________________________
Submitted September 26, 2023 – Decided November 9, 2023
Before Judges Gilson and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1735-19.
Jacobs & Barbone, PA, attorneys for appellant (David
A. Castaldi, on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondents (Sookie Bae-Park, Assistant Attorney
General, of counsel; Jae K. Shim, Deputy Attorney
General, 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NOT FOR PUBLICATION WITHOUT THE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.
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Plaintiff Kirk Sparks appeals from a June 10, 2022, order dismissing his
complaint with prejudice for failure to comply with a court order compelling
him to appear for an independent medical examination (IM Examination) that
had been requested in discovery. The IM Examination was relevant to plaintiff's
claim, but he had persistently refused to submit to the examination. Because the
trial court followed the procedures under Rule 4:23-5, and because we discern
no abuse of discretion, we affirm.
I.
This action involves plaintiff's claim that an investigator and a Deputy
Attorney General with the Division of Criminal Justice violated his civil rights
by procuring a criminal indictment from a grand jury by presenting inaccurate
information and not presenting exculpatory information. Plaintiff filed this
action after the criminal court dismissed the indictment.
Plaintiff is a former Atlantic City police officer. On March 27, 2014, he
and several other officers were involved in a high-speed automobile chase of a
suspect. Ultimately, the suspect and the officers fired shots and the suspect was
killed.
Following the shooting incident, plaintiff was on leave for a year. In April
2015, plaintiff returned to work on "light duty" until he retired on July 1, 2015.
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Between April 2014 and September 2015, plaintiff was treated by or examined
by four medical professionals, all of whom diagnosed plaintiff with post-
traumatic stress disorder (PTSD) related to the shooting incident.
Before retiring, plaintiff submitted multiple applications for accidental
disability pension benefits, all of which listed his disability as "PTSD stemming
from on[-]duty, officer[-]involved shooting resulting in fatality of suspect." One
of the four medical professionals who had examined plaintiff was Dr. Daniel B.
LoPreto, a psychologist. LoPreto examined plaintiff on September 18, 2015, on
behalf of the pension system. Like the other medical professionals, LoPreto
diagnosed plaintiff with PTSD and opined that plaintiff was permanently
disabled and unable to serve as a police officer. In November 2015, plaintiff
was granted an accidental disability retirement pension from the Police and
Firemen's Retirement System (pension system).
In April 2015, before his retirement from the Atlantic City Police
Department, plaintiff applied for a position as a "role player" with Ramcor
Services Group, Inc. (Ramcor), a private company that trains federal Air
Marshals and Transportation Security Officers. Ramcor listed plaintiff as being
hired on May 6, 2015, but plaintiff's first day of work at Ramcor was November
20, 2015. As a "role player" with Ramcor, plaintiff participated in training
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scenarios that simulated security threat situations such as hijackings. Those
scenarios sometimes involved the use of fake weapons and simulated firing of
guns.
In April 2016, the Pension Fraud and Abuse Unit of the Division of
Pensions and Benefits sent a memo to the Division of Criminal Justice
requesting an investigation of whether plaintiff had committed pension fraud.
The memo noted that the nature of plaintiff's work with Ramcor appeared to be
inconsistent with his stated PTSD symptoms. The memo also suggested that
plaintiff had not disclosed his employment with Ramcor to the medical
professionals who examined him or to the Trustees of the pension system.
Investigator Eric Barnes and Deputy Attorney General Jonathan Gilmore
(defendants), who both worked at the Division of Criminal Justice, were
assigned to investigate plaintiff's alleged pension fraud. Following an
investigation, defendants presented information to a grand jury. On December
7, 2016, the grand jury indicted plaintiff for one count of second-degree theft by
deception in violation of N.J.S.A. 2C:20-4.
Plaintiff moved to dismiss the indictment, contending that the presentation
to the grand jury included inaccurate information and excluded exculpatory
information. On June 30, 2017, a Criminal Division judge granted that motion.
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The judge found that the State had not presented sufficient evidence to establish
that plaintiff intended to deceive the medical professionals who evaluated him
to obtain a PTSD diagnosis. In other words, the court found that the State had
failed to present prima facie evidence on the necessary mens rea element of
second-degree theft by deception. The judge also found that there were "several
material factual inaccuracies" presented to the grand jury; therefore, the judge
dismissed the indictment without prejudice to the State's right to re-present the
case to another grand jury. There is nothing in the record before us indicating
that the State re-presented the case to another grand jury.
Two years after the criminal case was dismissed, in August 2019, plaintiff
was re-examined by LoPreto. As previously noted, LoPreto had initially
examined plaintiff in September 2015. LoPreto noted that at the initial
examination, plaintiff had not disclosed his plans to work for Ramcor.
Nevertheless, LoPreto ultimately concluded that plaintiff was still suffering
from PTSD and that he was still permanently disabled and not able to perform
the duties of a police officer.
On June 29, 2019, before Dr. LoPreto examined plaintiff, plaintiff filed a
civil complaint in the action underlying this appeal against defendants. Plaintiff
asserted one claim alleging a violation of the New Jersey Civil Rights Act (CR
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Act), N.J.S.A. 10:6-2. Plaintiff contended that defendants had misrepresented
the facts of the case and presented false information to the grand jury to procure
his indictment. In terms of damages, plaintiff alleged that defendants' action s
caused him "serious and substantial damages and injuries, including, but not
limited to, emotional distress, aggravation and exacerbation of his disability, as
well as substantial economic and non-economic damages."
Thereafter, the parties conducted discovery. In July 2021, defendants
served plaintiff with a notice requiring him to appear for an IM Examination by
Dr. Mark Siegert, a psychologist. In response, plaintiff filed a motion for a
protective order, seeking to limit the examination to plaintiff's emotional
distress and whether plaintiff's PTSD was exacerbated and to prevent the IM
Examination from calling into question plaintiff's PTSD diagnoses. Defendants
cross-moved, asserting that if plaintiff's motion was granted, plaintiff's claims
should be limited to economic-loss damages. On September 21, 2021, the trial
court issued an order denying plaintiff's motion for a protective order, denying
defendants' motion to bar plaintiff's claims for emotional distress and
exacerbation of his PTSD, and ordering plaintiff to submit to an IM Examination
with Siegert within forty-five days.
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The IM Examination was then scheduled for November 9, 2021. On
October 18, 2021, plaintiff's counsel requested that defendants agree to a
protective order limiting the use of the IM Examination report. Defendants
refused that request and twice asked plaintiff's counsel to confirm that plaintiff
would appear for the examination. Plaintiff's counsel never responded to those
requests. On November 9, 2021, plaintiff did not appear for the IM
Examination. Thereafter, defendants sent plaintiff, via his counsel, an invoice
for $6,300 to cover the expenses incurred by Siegert when plaintiff failed to
attend the examination.
Shortly thereafter, on November 16, 2021, defendants moved to dismiss
plaintiff's complaint without prejudice under Rule 4:19 and Rule 4:23-5(a)(1)
because plaintiff had failed to appear for the court-ordered IM Examination.
Plaintiff cross-moved for a protective order to reschedule the IM Examination
but limit the use of the IM Examination report and prevent disclosure of the
report to third parties. Plaintiff contended that because of the prior criminal
proceeding, he had concerns that the IM Examination report would be sent to
other government agencies, including the pension system, and used for "some
wrong purpose."
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On December 22, 2021, the trial court entered an order dismissing
plaintiff's complaint without prejudice and conditioning reinstatement on
plaintiff appearing for an IM Examination and paying the $6,300 cost related to
the missed IM Examination. The court also denied plaintiff's cross-motion for
a protective order, finding that plaintiff had not shown good cause. In making
those rulings, the court found that the IM Examination was relevant to assessing
plaintiff's alleged damages claims.
Plaintiff moved for reconsideration of the requirement that he pay $6,300
before his complaint was reinstated. The trial court denied that motion on
February 4, 2022.
On April 8, 2022, defendants moved to dismiss plaintiff's complaint with
prejudice under Rule 4:23-5(a)(2). Defendants pointed out that more than sixty
days had passed since the court dismissed the complaint without prejudice and
plaintiff had not rescheduled the IM Examination or paid the $6,300.
Plaintiff's counsel had not served an affidavit reciting that plaintiff had
been served with notice of the motion to dismiss with prejudice. Accordingly,
the trial court adjourned the motion and entered an order to show cause for
plaintiff's counsel to explain why he had not provided the affidavit. At a hearing
on June 10, 2022, plaintiff, through counsel, argued that his primary concern
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with submitting to the IM Examination arose out of his mistrust of the State.
The trial court found that plaintiff's "subjective belief" concerning the State's
motives did not constitute an exceptional circumstance. The trial court then
found that plaintiff had not demonstrated any exceptional circumstances for his
failure to comply with the discovery request and requirements for reinstatement
within the required sixty-day time period and had not moved to vacate.
Consequently, on June 10, 2022, the trial court entered an order dismissing
plaintiff's complaint with prejudice in accordance with Rule 4:23-5(a)(2).
Plaintiff now appeals from that order.
II.
On appeal, plaintiff argues that the trial court abused its discretion by
dismissing his entire case. He contends that the trial court should have imposed
the lesser sanction of dismissing only the emotional distress and exacerbation of
PTSD claims. Additionally, plaintiff asserts that the trial court abused its
discretion by not entering a protective order.
We review a trial court's decision to reinstate or dismiss a complaint under
an abuse of discretion standard. St. James AME Dev. Corp. v. City of Jersey
City, 403 N.J. Super. 480, 484 (App. Div. 2008); Abtrax Pharms., Inc., v. Elkins-
Sinn, Inc., 139 N.J. 499, 517 (1995). When dismissing a complaint with
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prejudice for failure to provide discovery, "meticulous attention" to the rules of
court is required. Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super.
368, 376-77 (App. Div. 1992).
The meticulous standard is rooted in well-established principles of justice.
One of the primary goals of litigation is to afford parties a fair hearing that
resolves the "disputes on the merits." St. James, 403 N.J. Super. at 484.
"[B]ecause dismissal with prejudice is 'the ultimate sanction,' it should be
imposed 'only sparingly' and 'normally . . . ordered only when no lesser sanction
will suffice to erase the prejudice suffered by the non-delinquent party.'" Salazar
v. MKGC + Design, 458 N.J. Super. 551, 561-62 (App. Div. 2019) (quoting
Robertet Flavors, Inc. v. Tri-Form Constr. Inc., 203 N.J. 252, 274 (2010)).
Nevertheless, "a party invites this extreme sanction by deliberately pursuing a
course that thwarts persistent efforts to obtain the necessary facts." Abtrax
Pharms., 139 N.J. at 515.
Failure to comply with a demand for discovery issued in accordance with
Rule 4:19 subjects the non-compliant party to dismissal proceedings in
accordance with Rule 4:23-5. R. 4:23-5(a)(1). Dismissal under Rule 4:23-5 is
a two-step process that must be strictly adhered to before a court can impose the
sanction of dismissal for failure to fulfill a discovery obligation. Thabo v. Z
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Transp., 452 N.J. Super. 359, 369 (App. Div. 2017) (citing St. James, 403 N.J.
Super. at 484). First, the moving party must seek dismissal without prejudice.
R. 4:23-5(a)(1). Thereafter, the non-compliant party has sixty days to cure and
move to vacate the dismissal order. R. 4:23-5(a)(2). Courts may also order
sanctions and counsel fees as a condition of reinstatement. See Sullivan v.
Coverings & Installation, Inc., 403 N.J. Super. 86, 94 (App. Div. 2008). Second,
the moving party may only seek dismissal with prejudice once the sixty -day
period has expired without the non-compliant party curing the discovery defect.
R. 4:23-5(a)(2). The motion to dismiss with prejudice "shall be granted" unless
a motion to vacate was filed and "either the demanded and fully responsive
discovery has been provided or exceptional circumstances are demonstrated."
Ibid. To establish exceptional circumstances, the delinquent party must prove
"external factors . . . which substantially interfered with the party's ability to
meet the discovery obligations." Rodriguez v. Luciano, 277 N.J. Super. 109,
112 (App. Div. 1994) (quoting Suarez v. Sumitomo Chem. Co., 256 N.J. Super.
683, 689 (Law Div. 1991)).
The goal of the two-step procedure in Rule 4:23-5 is to compel discovery
compliance rather than dismiss complaints. Adedoyin v. Arc of Morris Cnty.
Chapter, Inc., 325 N.J. Super. 173, 180 (App. Div. 1999). While the rule's
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structure reflects that preference for resolutions of disputes on the merits, "the
rule affords a party aggrieved by dilatory discovery tactics a remedy to compel
production of the outstanding discovery and the right to seek final resolution
through the two-step dismissal process." Sullivan, 403 N.J. Super. at 96.
The record supports the trial court's decision to dismiss plaintiff's
complaint with prejudice. Defendants requested plaintiff to submit to an IM
Examination in July 2021. Plaintiff failed to appear for the scheduled
examination on November 9, 2021. Thereafter, defendants followed the
procedures set forth in Rule 4:23-5. First, they moved for a dismissal without
prejudice and the trial court granted that motion on December 22, 2021. Plaintiff
failed to move for reinstatement within sixty days. Accordingly, in April 2022,
defendants moved to dismiss with prejudice. The court delayed the hearing on
that motion until June 10, 2022, but then granted it after finding that there were
no exceptional circumstances justifying plaintiff's non-compliance.
In summary, almost a year passed between defendants requesting the IM
Examination in July 2021 and the dismissal of plaintiff's complaint with
prejudice for non-compliance in June 2022. Given the number of motions that
were filed concerning the IM Examination, it is a fair conclusion that plaintiff
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willfully refused to be examined even when he knew the consequence warranted
a dismissal with prejudice.
We are not persuaded by plaintiff's arguments that he would have
complied with an IM Examination if the trial court had granted him a protective
order. Plaintiff twice moved for a protective order. In essence, plaintiff sought
to dictate the conditions of the examination and control how the report of the
examination could be used. The trial court found that there was no good cause
supporting plaintiff's requests for a protective order and we discern no abuse of
discretion in that finding.
We are also not persuaded by plaintiff's argument that the trial court
abused its discretion by not imposing a lesser sanction. The trial court found
that the IM Examination was relevant discovery and that it related to all of
plaintiff's damage claims. Here again, we discern no abuse of discretion.
Importantly, the court denied plaintiff's request for a protective order when it
entered the order dismissing the complaint without prejudice. Plaintiff,
therefore, had a clear choice: he could appear for the IM Examination and pay
$6,300; or he could continue to refuse to appear, and his complaint would be
dismissed with prejudice. Given that record, we cannot say it was an abuse of
discretion for the trial court to dismiss all of plaintiff's claims with prejudice as
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opposed to dismissing only the emotional distress and exacerbation of PTSD
damages claims.
Affirmed.