Cooper v. Cenric Services, Inc.

This case is before the court again on plaintiffs Motion for Reconsideration and Memorandum. The motion was addressed at a hearing on August 7,1995.

Essentially, counsel for plaintiff argues that the hearing on July 26, 1995, should not have resulted in the grant of summary judgment in defendant’s favor because summary judgment is not available as a sanction in discovery disputes, at least without there first being an order compelling discovery. This assessment is in error. Rule 4:12(d) allows the court to move directly to sanctions if any of the conditions mentioned there are satisfied. The court found the conditions mentioned therein had been met and imposed sanctions under Rule 4:12(d).

Counsel did not adequately explain why she did not attend the July 26 hearing or why she did not earlier advise the court of her inability to be present.

However, the court decides to vacate the July 26, 1995, order and replace it with an order dismissing the action without prejudice with the assessment of the payment of $500.00 attorney’s fee in connection with the bringing of the motion for summary judgment for failure to respond to discovery.