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Two Strikes and You’re Out (NJ)

January 15, 2016

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In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/01/Kim-v.-Suarez.pdf" rel="">Kim v. Suarez</a></em>, plaintiff paid a heavy price for failing to comply with two court orders. Plaintiff Hyun Kim filed a complaint alleging personal injuries as the result of an automobile accident. During discovery, plaintiff was scheduled to appear for a defense medical examination. She failed to attend the exam, and defendants filed a motion to dismiss the complaint without prejudice or, in the alternative, to compel the examination for a specific date.
The court issued an order compelling plaintiff to appear for an exam in July 2014. Plaintiff ignored the order and did not appear for the July exam. Defendants then filed a second motion to dismiss the complaint without prejudice for failure to appear for the exam. The court denied the dismissal, but compelled plaintiff to appear for an exam in September 2014. Plaintiff <em>again</em> failed to appear for the second court ordered examination.
Subsequently, defendants moved to dismiss plaintiff’s complaint <em>with</em> prejudice. The trial court granted the motion and dismissed the complaint with prejudice stating on the basis that plaintiff violated two court orders. Plaintiff appealed, arguing that the trial judge did not comply with the two-step process set forth in the court rules requiring preliminary dismissal of the complaint without prejudice.
The appellate court affirmed the trial court decision, stating that after two and a half years of discovery and plaintiff’s failure to appear to two court-ordered examinations, the trial judge properly exercised his discretion by dismissing the complaint with prejudice.  Thanks to Steve Kim for his contribution to this post.  Please email <a href="mailto:bgibbons@wcmlaw.com">Brian Gibbons</a> with any questions.
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