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March 5, 2026 Get Citation Alerts Download PDF Add Note

Shirley A. Goodheart v. Frederick Wieder

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-1988-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.8K)

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Combined Opinion

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1988-24

SHIRLEY A. GOODHEART,

Plaintiff-Appellant,

v.

FREDERICK WIEDER
and AMERICAN MULTI-
CINEMA, INC.,1

Defendants-Respondents.

Argued December 11, 2025 – Decided March 5, 2026

Before Judges Mawla and Puglisi.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No L-1832-19.

Paul E. Kiel argued the cause for appellant (Gold
Albanese Barletti, LLC, attorneys; James N. Barletti, of
counsel and on the briefs; Paul E. Kiel, on the briefs).

Catherine De Angelis argued the cause for respondent
American Multi-Cinema, Inc. (Weber Gallagher,

1
Improperly pled as Fred Weidner and AMC Theaters.
attorneys; Catherine De Angelis, of counsel and on the
brief; Nicholas C. Malet, on the brief).

Michael Della Rovere argued the cause for respondent
Frederick Wieder (O'Toole Couch & Della Rovere
LLC, attorneys; Michael Della Rovere, on the brief).

PER CURIAM

Plaintiff Shirley A. Goodheart appeals from three Law Division orders:

the December 16, 2024 order dismissing with prejudice her complaint against

defendant American Multi-Cinema, Inc. (AMC); the January 17, 2025 order

dismissing with prejudice her complaint against "all defendants," including

defendant Frederick Wieder; and the January 31, 2025 order denying her motion

for reconsideration of the December 16, 2024 order. We affirm.

I.

On August 22, 2019, plaintiff, then self-represented, filed a complaint

arising out of an incident that occurred at an AMC theatre on August 25, 2017.

Plaintiff alleged she told AMC management Wieder's son was having a seizure,

which "upset" Wieder, and he assaulted her, causing bodily injury. In addition

to her tort claim against Wieder, plaintiff alleged AMC and its personnel were

negligent by failing to: act in a reasonable manner to the medical emergency;

maintain adequate security; provide a safe environment; and "maintain

situation[al] awareness technologies like other AMCs." She sought damages for

A-1988-24
2
medical costs, future medical care, loss of income and future earnings, pain and

suffering, emotional and psychological damages, punitive damages, and counsel

fees.

The initial discovery end date was July 26, 2020, which was extended

multiple times and expired on November 30, 2021. Trial was set for June 13,

2022, adjourned twice at plaintiff's request, and ultimately scheduled for January

30, 2023. Two weeks prior to trial, plaintiff sought another adjournment, which

was denied. When she appeared unprepared for trial, the court dismissed the

complaint without prejudice for failure to prosecute.

After two unsuccessful motions for reconsideration, plaintiff moved to

substitute counsel for herself. In a January 5, 2024 order, the court granted

permission for the substitution of counsel, "subject to all of the conditions and

object[]ions set forth on the record . . . on December 5, 2023." 2

During a February 5, 2024 case management conference, plaintiff advised

the court her intended medical expert had passed away, and she requested

additional time to retain another expert. On February 20, 2024, plaintiff advised

2
The transcript of the December 5, 2023 proceeding is not in the record on
appeal.
A-1988-24
3
the court she retained a new expert and would produce their report thirty days

after her scheduled examination on April 24, 2024.

At a June 24, 2024 case management conference, plaintiff informed the

court her intended expert was unwilling to serve as an expert in her case, and

the court granted her request for additional time to retain another expert. At a

July 8, 2024 case management conference, plaintiff advised she had retained a

new expert, and the court granted an additional forty-five-day extension for her

to produce the expert report.

The day before an August 27, 2024 case management conference, plaintiff

requested a further extension to produce the report because her expert needed

more time to procure additional records to prepare it. Defendants opposed the

adjournment request, and AMC filed a motion to dismiss the complaint with

prejudice for failure to prosecute, seeking sanctions, counsel fees, and costs.

Plaintiff cross-moved to reopen discovery, establish a discovery schedule, and

serve a new expert report.

After considering argument on the motion, the court found:

[T]he extraordinary delay in this action has prejudiced
. . . defendants. Defendant Wieder died in 2019. His
wife is a witness and she is ill. Plaintiff's health . . .
allegedly continues to deteriorate, making questionable
the timely resolution of the case, based on what she
perceives to be her abilities or inabilities in terms of

A-1988-24
4
providing her proofs. An expert has died, and if this
case had proceeded in a manner remotely close to the
way in which cases of this type should proceed, most if
not all of those issues would never have arisen.

However, the court indicated it would not dismiss the case with prejudice at that

point, conditioned on three requirements with "no if[s], ands, or buts about it."

As reflected in the October 3, 2024 order and October 4, 2024 amended

order, the court denied without prejudice AMC's motions to dismiss and for

counsel fees and costs but granted its motion for sanctions in the amount of

$300; and denied plaintiff's cross-motion to reopen discovery. The denial of

AMC's motion to dismiss with prejudice was conditioned on plaintiff: (1)

serving her expert report by November 15, 2024; (2) filing a motion to reinstate

her complaint by December 30, 2024; and (3) paying the sanctions to AMC by

December 30, 2024. If she failed to do so, defendants were permitted to submit

an order under Rule 4:42-1(c) (the five-day rule), seeking dismissal of the

complaint with prejudice.

On November 18, 2024, AMC submitted a proposed order for dismissal

with prejudice under the five-day rule, based on plaintiff's failure to serve her

expert report by November 15, 2024. In response, plaintiff's counsel filed a

letter the same day, stating they had received the expert's report "[m]inutes ago"

and served it on defendants. Counsel averred "[t]he report was obtained as

A-1988-24
5
quickly as possible." AMC submitted a letter dated December 2, 2024,

requesting the court enter the order of dismissal because no objection was made

pursuant to the court rule.

The court subsequently entered the unopposed order on December 16,

2024, dismissing the complaint with prejudice as to AMC based on plaintiff's

failure to serve her expert report before November 15, 2024. The order stated:

"Based on the absence of any opposition, the failure to comply with this [c]ourt's

[o]rder[] dated October 4, 2024, and the reasons set forth at length at the oral

argument on October 3, 2024, the requested relief is appropriate."

On January 8, 2025, Wieder submitted a proposed order for dismissal with

prejudice under the five-day rule. Wieder noted, in addition to plaintiff's failure

to serve the expert report by the deadline, she also failed to move to reinstate

the complaint by December 30, 2024.

The court entered the unopposed order on January 17, 2025, dismissing

the complaint with prejudice as to all defendants based on plaintiff's "failure to

comply with the terms of the October 3, 2024 and October 4, 2024 [o]rders."

The order stated: "Based on the unopposed certification of facts, and the reasons

set forth on the record on October 3 and/or October 4, 2024, the requested relief

is [granted]."

A-1988-24
6
Plaintiff moved for reconsideration of the December 19, 2024 order,

arguing for leniency "in light of the circumstances presented in this matter—the

death of an expert, the death of [plaintiff's counsel's] law partner, and

[plaintiff's] disability." AMC's opposition argued the motion was moot because

the January 17, 2025 order dismissed the complaint with prejudice as to all

defendants. It further noted plaintiff failed to meet any of the requirements in

the October 3 and 4, 2024 orders, because she did not serve the expert report,

pay the $300 sanction to AMC, or move to reinstate her complaint by the

deadlines specified in the orders.

The court denied plaintiff's motion for reconsideration on January 31,

1. The order explained:

For all of the reasons set forth previously by this [c]ourt
and those set forth in [d]efendant[ AMC]'s opposition,
the motion for reconsideration is [denied]. The
prejudice arising from [p]laintiff's constant undue delay
in the prosecution of this action is palpable. Although
[p]laintiff now seeks reconsideration of the [c]ourt's
most recent [o]rder, she failed to submit any objection
to the [o]rder, which [d]efendants submitted over a
month ago. Plaintiff has not established that the
interests of justice would be served by reconsideration
of the December [o]rder dismissing this case with
prejudice. Lawson v. Dewar, 468 N.J. Super. 128 (App.
[D]iv. 2021). Indeed, under these circumstances, the
interests of justice would be subverted if the court
granted this motion.

A-1988-24
7
II.

"[T]he standard of review for dismissal of a complaint with prejudice for

discovery misconduct is whether the trial court abused its discretion, a standard

that cautions appellate courts not to interfere unless an injustice appears to have

been done." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995).

We also review a trial judge's decision on whether to grant or deny a motion for

reconsideration under Rule 4:49-2 for an abuse of discretion. Branch v. Cream-

O-Land Dairy, 244 N.J. 567, 582 (2021). "An abuse of discretion 'arises when

a decision is made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Kornbleuth v.

Westover, 241 N.J. 289, 302 (2020) (quoting Pitney Bowes Bank, Inc. v. ABC

Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015)).

Our "[d]iscovery rules are designed 'to further the public policies of

expeditious handling of cases, avoiding stale evidence, and providing

uniformity, predictability[,] and security in the conduct of litigation. '" Abtrax

Pharms., 139 N.J. at 512 (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)).

"It necessarily follows, if such rules are to be effective, that the courts impose

appropriate sanctions for violations thereof." Oliviero v. Porter Hayden Co.,

241 N.J. Super. 381, 387 (App. Div. 1990).

A-1988-24
8
Rule 4:23-2(b)(3) allows for the dismissal of a complaint "with or without

prejudice" in response to a party's failure to comply with an order to provide

discovery. Rule 4:37-2(a) likewise permits a court, in its discretion, to dismiss

an action with or without prejudice based on plaintiff's failure to comply with

an order. See Kohn's Bakery, Inc. v. Terracciano, 147 N.J. Super. 582, 584-85

(App. Div. 1977) (affirming a trial judge's discretion to impose sanctions for a

violation of court rules or failure to obey a court order).

Dismissal with prejudice should be employed "only sparingly" and is

"normally . . . ordered only when no lesser sanction will suffice to erase the

prejudice suffered by the non-delinquent party." Zaccardi, 88 N.J. at 253.

"[T]he court should assess the facts, including the willfulness of the violation,

the ability of plaintiff to produce the [evidence], the proximity of trial, and

prejudice to the adversary . . . ." Casinelli v. Manglapus, 181 N.J. 354, 365

(2004).

Plaintiff argues the trial court abused its discretion in dismissing her

complaint with prejudice because the report was only four days late and she

could have proceeded without it.3 She contends the court should have chosen a

3
Plaintiff's brief does not address her failure to comply with the other two
provisions in the order.
A-1988-24
9
lesser sanction of barring the report and expert at trial instead of a drastic

remedy. She also avers the court erred in noting the five-day order was

unopposed, because counsel's November 19, 2024 letter should have been

considered an objection even though it did not mention the proposed order.

Having reviewed the procedural history of this case in light of our

deferential standard of review, we are satisfied the court did not abuse its

discretion by dismissing the complaint with prejudice and denying the motion

for reconsideration. Even if plaintiff's November 19 letter were considered

opposition to the five-day order, it would not have impacted the outcome of the

matter because the letter only said the report was served upon receipt. The

court's reasoned decision was not grounded solely in plaintiff's abject non-

compliance with all three provisions of the October 3 and 4, 2024 orders, but

also on her "constant undue delay" throughout the entirety of this case and the

"palpable" prejudice that arose from her misconduct.

For the first time on appeal, plaintiff contends she could have proceeded

without an expert report, and therefore the court erred in dismissing the

complaint with prejudice. We decline to consider an issue not properly

presented to the trial court unless the jurisdiction of the court is implicated or

A-1988-24
10
the matter concerns an issue of great public importance. Nieder v. Royal Indem.

Ins. Co., 62 N.J. 229, 234 (1973). Neither circumstance is present in this matter.

Affirmed.

A-1988-24
11