AZIZ M. THABO VS. Z TRANSPORTATION(L-3296-15, PASSAIC COUNTY AND STATEWIDE), A-0034-16T1

Thabo bought a 2006 truck from Z Transportation, paid $1,000 deposit and later $18,600 balance; dispute arose over DOT compliance and refund.
Thabo sued pro se in Sept. 2015; Z Transportation counterclaimed for storage charges. Initial discovery end date was April 21, 2016.
Multiple discovery disputes: court granted Thabo’s motion to compel defendant’s production (order entered Feb. 19, 2016); defendant later obtained dismissal of Thabo’s complaint without prejudice for failure to answer interrogatories (Mar. 18, 2016).
Defendant moved June 2, 2016 to dismiss with prejudice under R. 4:23-5(a)(2); defendant’s counsel failed to certify that defendant was not in default, and failed to prove service of required notices to Thabo (a pro se litigant at time of earlier orders).
Thabo’s new counsel served outstanding discovery responses on June 6, 2016 (more than a month before the July 8, 2016 order). The court nonetheless entered an order dismissing the complaint with prejudice on July 8, 2016; a follow-up motion to restore was denied.
Appellate court vacated the dismissal with prejudice, finding both the moving party and the motion judge failed to follow the strict procedural safeguards in Rule 4:23-5 and abused their discretion; case remanded for case management and renewed discovery schedule.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Was dismissal with prejudice under R.4:23-5 proper?	Dismissal improper; Thabo had not been given required notice and later served discovery.	Dismissal proper after lapse of 60-day post-dismissal period and continued noncompliance.	Reversed — dismissal with prejudice improper because procedural safeguards of R.4:23-5 were not followed.
2. Did defendant satisfy R.4:23-5(a)(1)/(a)(2) notice and affidavit requirements?	N/A (relies on court enforcement).	Defendant claims notice occurred and grace period expired.	No — defendant’s filings lacked required certifications of service and a statement that it was not in default; moving party failed to prove compliance.
3. Did the motion judge abuse discretion in granting dismissal?	Judge erred by ignoring that defendant had been previously found delinquent and that Thabo later served discovery.	Judge relied on defendant’s motion and absence of a timely restoration motion.	Yes — judges abused discretion by failing to perform gatekeeping duties under the rule.
4. Appropriate remedy?	Reinstate complaint; permit discovery and case management.	(Implicit) Uphold dismissal.	Vacated dismissal with prejudice; reinstated complaint and remanded for case management, new DED, schedule and trial date setting.

Abtrax Pharm. v. Elkins-Sinn, Inc., 139 N.J. 499 (1995) (standard of review for dismissal with prejudice for discovery misuse)
Flagg v. Essex County Prosecutor, 171 N.J. 561 (2002) (abuse of discretion standard explained)
United States v. Scurry, 193 N.J. 492 (2008) (abuse of discretion when decision lacks rational explanation)
Serenity Contracting v. Fort Lee, 306 N.J. Super. 151 (App. Div. 1997) (deference to trial court discretion)
A & M Farm & Garden Ctr. v. Am. Sprinkler Mech. L.L.C., 423 N.J. Super. 528 (App. Div. 2012) (motion judge’s duty to obtain compliance with R.4:23-5)
St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480 (App. Div. 2008) (two-step procedural paradigm of R.4:23-5)
Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86 (App. Div. 2008) (requirement that R.4:23-5 procedures be scrupulously followed)
McKenney v. Jersey City Med. Ctr., 167 N.J. 359 (2001) (attorney duty of candor and disclosure to the court)