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Thursday, January 26, 2012

A&M FARM & GARDEN CENTER VS. AMERICAN SPRINKLER MECHANICAL, L.L.C. A-2921-10T1

 A&M FARM & GARDEN CENTER VS. AMERICAN SPRINKLER           MECHANICAL, L.L.C. 

A-2921-10T1

Rule 4:23-5(a)(3), which governs the dismissal or suppression of pleadings with prejudice for failure to provide discovery, requires a motion judge to take action to obtain compliance with the requirements of the rule. Despite obvious breaches of the rule's requirements, the motion judge here granted an unopposed motion to dismiss plaintiff's complaint with prejudice without taking any action to secure compliance. We hold that, when a court considers such a motion and there is nothing before the court showing that a litigant has received notice of its exposure to the ultimate sanction, the court must take some action to obtain compliance with the requirements of the rule before entering an order of dismissal or suppression with prejudice. 01-17-12