JOHN P. MCGOVERN VS. CITY OF ORANGEÂ (L-1596-14, ESSEX COUNTY AND STATEWIDE), A-2260-15T1

Background

McGovern, an Assistant City Attorney for the City of Orange, alleges he refused to unlawfully waive a city workers’ compensation lien at the instruction of Business Administrator Willis Edwards and then was terminated in retaliation.
McGovern filed CEPA, wrongful discharge, and breach of contract claims after his termination effective February 1, 2013.
Defendants failed to comply with multiple court-ordered discovery obligations and repeatedly missed deadlines; the court initially struck their answer without prejudice, later restored it, then ultimately struck it with prejudice after further noncompliance.
A proof hearing was held after the answer was struck; the trial judge found McGovern proved a CEPA violation, ordered reinstatement, back pay, compensatory damages, pension contributions, and attorney’s fees.
Defendants moved to vacate the default under Rule 4:50-1; the trial court denied relief, and the Appellate Division affirmed, concluding striking the answer with prejudice was within the court’s discretion given persistent discovery violations and prejudice to McGovern.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether striking defendants’ answer with prejudice was an abuse of discretion	McGovern argued discovery went to the core of his CEPA claim and defendants’ failure to comply prejudiced his ability to obtain the employer’s proffered reasons for termination.	City argued counsel’s discovery failures were not deliberate, lesser sanctions were available, and at‑will status meant no written reason was required.	The court affirmed: persistent, repeated discovery noncompliance justified the ultimate sanction since discovery sought was central to McGovern’s CEPA claim and lesser sanctions had been tried.
Whether the trial court should have vacated the default under Rule 4:50-1(f)	McGovern argued defendants failed to show “truly exceptional circumstances” or grave injustice that would warrant relief.	City argued prior counsel’s misconduct and lack of notice/supporting affidavits justified relief under Rule 4:50-1(f).	The court held defendants failed to meet the high threshold for relief under Rule 4:50-1(f); no abuse of discretion in denying vacatur.
Whether defendants’ at-will employment argument excuses discovery or production of termination reasons	McGovern argued that once a prima facie CEPA claim was made, the employer must produce legitimate reasons and discovery into those reasons is essential.	City argued at-will employment means no obligation to provide reasons for termination.	The court agreed with McGovern: in CEPA claims, after a prima facie showing, the employer must come forward with legitimate reasons and those reasons are discoverable.
Whether lesser sanctions (e.g., limiting evidence, fees, depositions) were adequate	McGovern argued lesser sanctions would not cure the prejudice because the requested discovery was never produced despite repeated orders.	City suggested alternatives (depositions, fee shifting, precluding evidence) would be sufficient.	The court found lesser sanctions had been attempted or would not have remedied the core prejudice; striking the answer was appropriate.

Key Cases Cited

Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499 (discusses standards and sparing use of dismissal as sanction)
Zaccardi v. Becker, 88 N.J. 245 (standards for dismissal/striking pleadings for discovery misconduct)
Dzwonar v. McDevitt, 177 N.J. 451 (elements of a CEPA claim)
Massarano v. N.J. Transit, 400 N.J. Super. 474 (burden-shifting once plaintiff makes prima facie CEPA case)
Kolb v. Burns, 320 N.J. Super. 467 (plaintiff must show employer’s proffered reasons are not worthy of belief)
U.S. Bank Nat’l Ass’n v. Guillaume, 209 N.J. 449 (standard of review for Rule 4:50-1 motions)
Lang v. Morgan’s Home Equip. Corp., 6 N.J. 333 (historic discussion of dismissal as drastic remedy)
Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88 (abuse of discretion standards)
Housing Auth. of Morristown v. Little, 135 N.J. 274 (Rule 4:50-1(f) requires exceptional circumstances to grant relief)