                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0383-17T4

ROBERT F. EDWARDS,

          Plaintiff-Appellant,

v.

THE HOUSING AUTHORITY
OF PLAINFIELD and
RANDALL WOOD,

     Defendants-Respondents.
___________________________

                    Argued February 14, 2019 – Decided March 12, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Docket No. L-4026-15.

                    Robert F. Edwards, appellant, argued the cause pro se.

                    Lawrence D. Minasian argued the cause for
                    respondents (Greenberg Minasian, LLC, attorneys;
                    Lawrence D. Minasian, on the brief).
PER CURIAM

         Plaintiff Robert F. Edwards appeals from the August 18, 2017 Law

Division order, which denied his motion for summary judgment and dismissed

his complaint with prejudice pursuant to Rule 4:23-5(a)(2). We affirm.

         Plaintiff was a tenant in the public housing complex of defendant Housing

Authority of Plainfield. Plaintiff claimed that on December 14, 2013, he slipped

and fell on ice on the sidewalk in front of the housing complex, fracturing his

ankle.     On November 20, 2015, plaintiff filed a complaint pro se against

defendant and its executive director, Randall Wood, for negligence and punitive

damages.1

         Defendants filed a motion to dismiss the complaint for failure to timely

file a notice of tort claim pursuant to the New Jersey Tort Claims Act (TCA),

N.J.S.A. 59:8-1 to -12-3. After discovering that plaintiff had timely filed a

notice of claim, defendants withdrew the motion and filed an answer. The

discovery end date was December 31, 2016.

         On April 29, 2016, defendants sent plaintiff a letter, attaching the

following discovery demands: answers to Form A and supplemental

interrogatories; deposition notice for June 22, 2016; request for statement of


1
    Plaintiff has appeared pro se throughout this matter.
                                                                          A-0383-17T4
                                         2
damages; notice to produce; and medical authorizations submitted for plaintiff's

signature. The letter instructed plaintiff to contact defense counsel within ten

days of plaintiff's receipt of the letter if he did not receive all of the discovery

requests or had any questions concerning the requests. Plaintiff stamped the

letter and attached discovery demands "REFUSED FOR FRAUD" and returned

the documents to defense counsel.2

      On June 9, 2016, defendants served on plaintiff certified answers to Form

C and C(2) interrogatories on plaintiff and demanded that plaintiff respond to

their discovery demands "in order to avoid judicial intervention." In addition, a

phone call was made to plaintiff requesting the outstanding discovery and his

appearance at a deposition.

      Plaintiff failed to comply with defendants' discovery demands or appear

for a deposition. As a result, defendants filed a motion to dismiss the complaint

without prejudice pursuant to Rule 4:23-5(a) for plaintiff's failure to make

discovery. Plaintiff opposed the motion. In a July 8, 2016 order, the court

granted the motion, finding plaintiff failed to set forth any basis in law for failing




2
  Plaintiff also stamped other documents defense counsel served on him
"REFUSED FOR FRAUD."
                                                                              A-0383-17T4
                                          3
to comply with defendants' discovery demands. Plaintiff received the order and

stamped it "VOID AB INITIO."

      Without responding to defendants' discovery demands, plaintiff filed a

motion to vacate the July 8, 2016 order and reinstate the complaint, which the

court denied in an August 5, 2016 order.3 Plaintiff then filed a motion for

reconsideration and a motion for leave to appeal with this court, which we

denied in a November 10, 2016 order. Plaintiff then filed a motion with our

Supreme Court for reconsideration of our November 10, 2016 order, which the

Court denied in a May 2, 2017 order.

      Thereafter, plaintiff did not respond to defendants' discovery demands or

file a motion to reinstate the complaint. Instead, while the complaint was still

dismissed, on July 6, 2017, plaintiff filed a motion for summary judgment.

Defendants opposed the motion and filed a cross-motion to dismiss the

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

make discovery. Defense counsel served a notice to pro se party in compliance

with Rule 4:23-5(a)(2), and submitted a supporting certification that complied

with the requirements of Rule 4:23-5(a)(3).


3
  The court denied the motion for the reasons set forth on the record on August
5, 2016. Plaintiff has not provided the motion transcript in violation of Rule
2:5-4(a).
                                                                         A-0383-17T4
                                       4
      The parties appeared for oral argument on August 18, 2017. Plaintiff

confirmed he refused to comply with defendants' discovery demands, and argued

the July 8, 2016 order was a "fraud upon the court." In an August 18, 2017

order, the court denied plaintiff's summary judgment motion, finding it could

not consider the motion on the merits because the complaint was dismissed and

plaintiff lacked standing to bring the motion. The court also granted defendants'

cross-motion and dismissed the complaint with prejudice pursuant to Rule 4:23-

5(a)(2). The court found defendants met all procedural requirements of Rule

4:23-5 and plaintiff failed to provide discovery or demonstrate exceptional

circumstances warranting the denial of defendants' motion.           This appeal

followed.

      We review the trial court's dismissal of a complaint with prejudice for

discovery misconduct for abuse of discretion. Abtrax Pharms. v. Elkins-Sinn,

Inc., 139 N.J. 499, 517 (1995).       An "abuse of discretion only arises on

demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6,

20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when

the trial court's "decision is 'made without a rational explanation, inexplicably

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

v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v.


                                                                          A-0383-17T4
                                        5
Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). We discern no abuse of

discretion here.

      On appeal, plaintiff does not deny that he refused to respond to defendants'

discovery demands or that defendants satisfied the procedural requirements of

Rule 4:23-5. Rather, he argues he returned defendants' discovery demands as

"REFUSED FOR FRAUD[,]" and thus, "the issue is not a failure to answer, but

rather a bona fide dispute as to the adequacy of the answers given."4 This

argument has no merit whatsoever.

      Dismissal with prejudice is inappropriate where there is a bona fide

dispute as to the responsiveness or insufficiency of answers to discovery

requests. Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 378



4
  We decline to address plaintiff's additional arguments that: (1) the court lacked
jurisdiction to preempt plaintiff's Housing and Urban Development (HUD)-
regulated lease with the TCA; (2) the court lacked jurisdiction because
defendants provided no notice the lease was subject to the TCA; (3) the lease
was void ab initio due to defendants' failure to comply with federal statutes and
HUD regulations; (4) the court violated plaintiff's due process rights by
preventing him from presenting witnesses and the lease; and (5) the court
improperly allowed defendants' ex parte communication regarding withdrawal
of their motion to dismiss for failure to file a notice of claim. The complaint
was not dismissed pursuant to the TCA, and plaintiff's lease and defendants'
alleged non-compliance with federal statutes and HUD regulations have no
bearing on the dismissal of the complaint for failure to make discovery. This is
a simple negligence action and plaintiff did not file an amended complaint
adding other claims.
                                                                           A-0383-17T4
                                        6
(App. Div. 1992). A bona fide dispute occurs where the alleged delinquent party

has provided responses to discovery requests, but the other party deems them

not fully responsive or insufficient. See ibid. (holding "that when the real

discovery dispute is not a failure to answer but rather an alleged failure to answer

in a 'fully responsive' manner, it is the dismissal with prejudice which is

inappropriate unless the answering party has been ordered to answer more fully

and fails to do so."); see also Adedoyin v. Arc of Morris Cty. Chapter, Inc., 325

N.J. Super. 173, 183 (App. Div. 1999).

      Returning documents as "REFUSED FOR FRAUD" was not a response to

defendants' discovery demands.        Because plaintiff provided no response

whatsoever to defendants' discovery demands and refused to do so, there is no

bona fide dispute warranting the denial of defendants' motion to dismiss the

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

      Affirmed.




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                                         7
