Q: i filed a motion to strike the pleadings of defendat for failure to make discovery
I have a lawsuit against family members where I am nearing the end of discovery. the defendants have not conducted any discovery which led to their pleadings being struck without prejudice. I filed a second motion to strike with prejudice and the courts filed an order stating the court will dismiss the above party or parties for lack of prosecution without prejudice, pursuant to rule 1:13-7 or rule 4:43-2 unless action required under the above rules is taken
A:
My suggestion is that you meet with / retain a lawyer to take over the handling of your matter since I am not sure that you understand the legal significance of your actions or the court's response to it. You served discovery requests on the other side and presumably, they answered your discovery requests. Conversely, they never served discovery requests on you, even though a court order gave them the authority to serve discovery requests.
Based on their failure to serve discovery requests on you, you then moved before the court for an order dismissing without prejudice their pleadings.
Presuming my understanding of your actions is correct, you didnt have the right to an order of dismissal against them because they are not obligated to serve discovery requests. If they failed to serve discovery requests, it means that they cannot object to your use of materials at time of trial because they cannot claim surprise (the primary reason why you would serve a discovery request).
Conversely, if you mean to say that you served them with discovery requests and they failed to respond to your discovery requests (did not answer your requests), then you were correct in asking the court to dismiss their pleadings without prejudice for their non-compliance. But when you file that type of application, you must also certify that you are in compliance with your discovery obligations to them (if they served discovery requests on you) and that you provided fully responsive discovery responses to their inquiries.
If you did fully cooperate with your discovery obligations and you already have an order of the court dismissing their pleadings without prejudice, and they fail to correct their discovery deficiencies within the time frame given to them by the court in its order for dismissal, then presuming you served that order on them timely, and notice of your intent to move for dismissal of their pleadings with prejudice for their continued noncompliance, then the court has the right to enter the order sought or another variation to try and get them to comply. And, as a last resort, dismiss their pleadings with prejudice.
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