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Dismissal with prejudice is too harsh a sanction for a plaintiff who loses his first lawyer and doesn’t find a new one by a court-imposed deadline, a New Jersey appeals panel ruled Wednesday. Rather, the plaintiff should be allowed to go it alone, the Appellate Division said, reinstating Giacobbi v. Midstate HYE, A-4957-06, a personal injury suit in which discovery had been delayed for more than six months due to the plaintiff’s change of counsel. “If a litigant has not obtained new counsel after the original attorney has been granted leave to withdraw, the appropriate relief is not to dismiss the matter with prejudice but to direct the that plaintiff thereafter proceed pro se,” Judges Dorothea Wefing and Lorraine Parker held. Middlesex County Superior Court Judge Jessica Mayer gave Anthony Giacobbi a deadline to find a new lawyer and he missed it by a matter of hours, but the judge dismissed the case anyway, even though Giacobbi did not appear to have violated any discovery orders. The appeals court found there had been minimal discovery, other than the exchange of answers to interrogatories. The suit was filed in July 2005, and in August 2006, Mayer ordered Giacobbi to submit to a medical examination. The record is silent on whether he complied, though the appeals court infers he did. Mayer also ordered Giacobbi to submit to a deposition, but Giacobbi’s adversaries agreed to adjourn it after he indicated he would be retaining new counsel. Giacobbi failed to immediately line up a new lawyer, so his first lawyer filed a motion returnable in November 2006 to be relieved as counsel. Mayer granted the order with a provision that the attorney remain on the case for 60 days to receive and transmit communications for Giacobbi. At the end of that period, Giacobbi had still not found another lawyer, and the defendants moved for dismissal, relying on Rule 4:37-2, failure to prosecute, and R. 4:23-2, failure to comply with previous court orders. The return date on the motion was Feb. 16, 2007, but it was extended to March 2, and Mayer told Giacobbi she would carry the motion until March 30, but he needed to have hired an attorney by then or face dismissal. On March 27, Giacobbi had a new attorney, Bruce Iverson of Howard Teitelbaum’s office in East Brunswick, who sent a substitution form to the orginal attorney on that date, asking for it to be executed and returned, but did not receive it back in time. On March 30, Iverson sent a copy of the unexecuted substitution form to the two defense lawyers, but they responded with copies of Mayer’s order dismissing the complaint with prejudice. On appeal, Iverson argued that dismissal with prejudice should only be used as a last resort and not when a lesser sanction is available. But defense attorney Andrew Kulick of Kulick Brennan & Krochta in Raritan, said R. 4:37-2 permits a trial court to dismiss for failure to comply with an order and R. 4:23-2 allows the same relief for failure to permit discovery. But Wefing and Parker said no such relief is called for because Giacobbi never violated any discovery orders. In such a case, a judge should direct the plaintiff to proceed pro se, they said. “In doing so, of course, plaintiff must comply with the appropriate court rules and provide discovery. If an order had been entered compelling discovery by a certain date and plaintiff had failed to comply with that order, dismissal would be appropriate. That, however, is not what occurred in this matter.” Mayer’s oral opinion said the case was dismissed with prejudice because it was earlier dismissed without prejudice for failure to provide discovery and because 90 days had elapsed with no resolution of the discovery violation. But the record provides no evidence that the case was dismissed without prejudice for the plaintiff’s failure to be deposed, the appeals court said. Iverson says that he does not know why Giacobbi took so long to obtain new counsel and that he learned the case was dismissed when telling the other attorneys he was representing Giacobbi. “We literally missed the judge by hours. My gut feeling is if [Mayer] had known we were in the case, she would not have dismissed us,” Iverson says. Kulick notes that Giacobbi still has many hurdles to overcome. The suit claims he fractured his right ankle when he fell in a sidewalk hole outside an Office Max store in the Mid State Mall in East Brunswick on June 1, 2005. But three Office Max workers who witnessed the accident said he fell while riding a skateboard, being pulled by a dog, not while walking as he maintains, says Kulick, who represents Office Max. The witnesses also say the fall took place in front of a neighboring Best Buy store, not in front of Office Max, Kulick adds. The shopping center’s lawyer, Timothy Holman of Jonathan Westpy’s office in East Windsor, did not return a call.

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