Opinion
DOCKET NO. A-1447-11T4
01-25-2013
NICHOLAS FITZGERALD, on behalf of himself and all others similarly situated, Plaintiff-Respondent, v. GANN LAW BOOKS, INC., GANN LEGAL EDUCATION FOUNDATION, INC. and MICHAEL PROTZEL, Defendants-Appellants.
Bruce D. Greenberg argued the cause for appellants (Lite DePalma Greenberg, L.L.C., attorneys; Allyn Z. Lite and Mr. Greenberg, on the briefs). Aytan Y. Bellin (Bellin and Associates L.L.C.) argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2832-11.
Bruce D. Greenberg argued the cause for appellants (Lite DePalma Greenberg, L.L.C., attorneys; Allyn Z. Lite and Mr. Greenberg, on the briefs).
Aytan Y. Bellin (Bellin and Associates L.L.C.) argued the cause for respondent. PER CURIAM
Plaintiff Nicholas Fitzgerald, an attorney licensed to practice in this State, filed this class action suit in the Law Division of the Superior Court of New Jersey against defendants Gann Law Books, Inc., Gann Legal Education Foundation, Inc., and Michael Protzel, alleging that defendants violated the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C.A. § 227. Shortly after plaintiff filed his complaint, this court decided Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., 421 N.J. Super. 268 (App. Div.), certif. denied, 209 N.J. 96 (2011), which held that class action suits were inappropriate for adjudicating TCPA claims in the courts of this State. Id. at 280-81.
On July 20, 2011, the day after our decision in Local Baking Products was released, defendants moved to dismiss plaintiff's class action claims against them with prejudice and to transfer the remaining claims to the Small Claims Section of the Special Civil Part. The next day, July 21, 2011, plaintiff filed a notice of voluntary dismissal without prejudice under Rule 4:37-1(a). Defendants filed an answer with the court that same day. On July 26, 2011, five days after filing the notice of voluntary dismissal of the state action, plaintiff filed a similar complaint in the United States District Court for the District of New Jersey.
The parties had previously entered into a stipulation extending the time in which defendants could file a responsive pleading to the class action suit until August 10, 2011.
The Law Division ruled that plaintiff's notice of voluntary dismissal was untimely under Rule 4:37-1(a). Despite this, the trial court construed Rule 4:37-1(b) as giving it discretionary authority to dismiss plaintiff's complaint without prejudice and without costs or fees, and it entered an order accordingly. Defendants now appeal arguing that the trial court erred in exercising the authority conferred in Rule 4:37-1(b), because the court failed to consider plaintiff's improper motive of forum shopping in seeking to dismiss the state action.
We affirm for reasons other than those expressed by the trial court. We are satisfied that plaintiff's notice of voluntary dismissal under Rule 4:37-1(a) was timely filed. We thus need not and specifically do not reach the arguments challenging the court's ruling under Rule 4:37-1(b). The following facts inform our legal analysis.
It is well settled that "we affirm or reverse judgments and orders, not reasons." State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002) (citing Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968), abrogated on other grounds, Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546, 565-66 (1991); Walker v. Briarwood Condo Ass'n, 274 N.J. Super. 422, 426 (App. Div. 1994)).
I
Counsel for defendants first raised the issue of timeliness regarding plaintiff's notice of voluntary dismissal under Rule 4:37-1(a) in a letter to the trial judge dated August 3, 2011. After describing the procedural history of the case, defendants presented the following argument:
Plaintiff sought to "voluntarily dismiss" this case the day after the Appellate Division decided Local Baking Products. He then sought to reinstitute the same personal and class action claims against the same parties as the present action in a lawsuit filed in the United States District Court for the District of New Jersey on July 26, 2011, entitled Nicholas Fitzgerald v. Gann Law Books, Inc. Gann Legal Education Foundation and Michael Protzel, Civil Action No. 11-04287-FSH-PS. Such blatant forum shopping is improper, especially since plaintiff has failed to timely file his Notice of Voluntary Dismissal and his case must either be dismissed with prejudice or adjudicated on the merits in state court, the forum where he chose to institute those claims.
In the event the plaintiff fails to dismiss this case with prejudice, we respectfully request your Honor proceed with this hearing on Gann's motion to dismiss the class action claims with prejudice and to transfer Mr. Fitzpatrick's personal claims to Special Civil Part, Small Claims Section.
The trial judge responded to defense counsel by way of letter. In this letter, the judge established a briefing schedule for defendants' pending motion to dismiss, set a date for oral argument, and suggested that the attorneys attempt to resolve the matter before the date set for oral argument. Plaintiff responded in a letter dated August 8, 2011, asking the court to either confirm his voluntary dismissal under Rule 4:37- 1(a) or allow him to move for a voluntary dismissal under Rule 4:37-1(b).
Although a trial judge has a great deal of discretion in the manner he or she manages cases assigned for disposition, the better practice should be to require counsel or pro se litigants to raise material issues by way of formal motion practice. This kind of informal exchange of correspondence directly with the judge should be discouraged because it bypasses the management apparatus established to monitor the progress of litigation in our courts.
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By the time defendants' motion to dismiss came before the court for oral argument, plaintiff had not filed a formal motion for voluntarily dismissal under Rule 4:37-1(b). Despite this, the trial court directed the parties to address the threshold issue of voluntary dismissal under both Rule 4:37-1(a) and (b). The judge reasoned that based upon the communications with the parties and the substantive arguments raised in the briefs, he considered the issues implicated by Rule 4:37-1(b) to be properly "before the Court." Even if plaintiff had not filed a formal motion, "the Court on its own motion raised the issue."
The trial court first ruled that plaintiff's voluntary dismissal under Rule 4:37-1(a) was ineffective because defendants had filed their answer to plaintiff's class action suit by the time plaintiff sought the relief available under section (a) of Rule 4:37-1. Invoking what the trial judge characterized as his discretionary authority under Rule 4:37-1(b), the judge dismissed the matter without prejudice.
Defendants argued that under Shulas v. Estabrook, 385 N.J. Super. 91 (App. Div. 2006), a dismissal with prejudice was warranted because defendants devoted substantial effort and work in responding to the state court litigation and plaintiff's belated attempt to dismiss the state action followed by refiling the identical complaint in federal court was nothing less than blatant and improper forum shopping. The court disagreed, and distinguished Shulas as follows:
In [Shulas] the plaintiff sought a voluntary dismissal. Defendants had already . . . answered the complaint and moved for summary judgment. And, more importantly, the trial was scheduled to occur only 17 days later at the time that this voluntary dismissal was heard. The procedural history in, essentially, the infancy of this case is clear based on the chronology that I've outlined. Again, they reference the Appellate Division to the significant amount of time that was expended on the case, effectively requiring a relitigation of the case in another forum after the case had been fully explored in discovery and a trial date set. That's not the case here.
The court denied defendants' application for attorneys fees and entered an order dismissing plaintiff's complaint without prejudice. The court also denied defendants' motion for reconsideration.
II
In order to give the proper context to our discussion, we cite Rule 4:37-1(a) and (b) in its entirety:
(a) By Plaintiff; By Stipulation. Subject to the provisions of R. 4:32-2(e) (class actions), R. 4:53-1 (receivership actions) and R. 4:60-18 (attachment actions), an action may be dismissed by the plaintiff without court order by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs; or by filing a stipulation of dismissal specifying the claim or claims being dismissed, signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice.
(b) By Order of Court. Except as provided by paragraph (a) hereof, an action shall be dismissed at the plaintiff's instance only by leave of court and upon such terms and conditions as the court deems appropriate. If a counterclaim has been filed and served by a defendant prior to being served with plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
[(Emphasis added).]
The record here is undisputed that defendants filed their responsive pleading with the court, but did not serve it upon plaintiff before plaintiff filed his notice of voluntary dismissal under Rule 4:37-1(a). As such, under the plain language of the Rule, plaintiff is entitled to the relief provided in subsection (a). Shulas, supra, 385 N.J. Super. at 96-97; see also Marques v. Fed. Reserve Bank of Chi., 286 F.3d 1014, 1017 (7th Cir. 2002) (explaining that, under Fed. R. Civ. P. 41(a)(1), the federal analog to Rule 4:37-1(a), "one doesn't need a good reason, or even a sane or any reason, to dismiss a suit voluntarily" because "[t]he right is absolute").
Defendants argue that their motion to dismiss -- which was filed on July 20, 2011, one day before plaintiff filed his voluntary dismissal -- is the equivalent of filing an answer or motion for summary judgment under Rule 4:37-1(a). We disagree.
Rule 4:6-2 states that a motion to dismiss may be asserted in lieu of an answer when based on one of the following defenses:
(a) lack of jurisdiction over the subject matter, (b) lack of jurisdiction over the person, (c) insufficiency of process, (d) insufficiency of service of process, (e) failure to state a claim upon which relief can be granted, (f) failure to join a party without whom the action cannot proceed, as provided by R. 4:28-1.
Rule 4:6-2 also provides that under "the defense numbered (e)" a motion to dismiss "shall be treated as one for summary judgment" if "matters outside the pleading are presented" to the court. While this rule allows a defendant to file a motion to dismiss as their first pleading, in lieu of an answer, no court of this State has ever held, in a published opinion, that such a motion to dismiss can also substitute for an answer or motion for summary judgment under Rule 4:37-1(a).
In Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007), the Court admonished: "If the plain language leads to a clear and unambiguous result, then our interpretive process is over." Id. at 195 (citations omitted). Here, we discern no reason to deviate from the plain language of Rule 4:6-2. Defendants' motion to dismiss was based exclusively on a question of law, to wit, the cognizability of class actions suits presenting TCPA claims in the courts of this State. That question was clearly answered in the negative by Local Baking Products, supra, 421 N.J. Super. at 280. Because the court could have decided defendants' motion to dismiss under Rule 4:6-2(e) as a matter of law, staying within the four corners of plaintiff's pleading, it cannot be viewed as the equivalent of a summary judgment motion under Rule 4:46-2.
In Marques, the United States Court of Appeals for the Seventh Circuit held that motions to dismiss in lieu of an answer should not be considered as the equivalent of a motion for summary judgment unless and until the judge has expressly so declared under Fed. R. Civ. Pro. 12(d). Marques, supra, 286 F.3d at 1016-17. The reasoning behind this rule has been expressed as follows:
Permitting a defendant, merely by appending to his Rule 12(b)(6) motion materials "outside the pleadings," regardless of their scope, content or form, to abridge a plaintiff's right to voluntarily dismiss his action without prejudice, not only circumvents the plain language of the rule, but flies in the face of the "time and effort in litigation" rationale. Furthermore, the clear language of Rule 12(b) which permits a 12(b)(6) motion accompanied by extraneous materials to be treated as a motion for summary judgment is directed, not at the parties, but at the court; conversion takes place at the discretion of the court, and at the time the court affirmatively decides not to exclude the extraneous matters.
[Aamot v. Kassel, 1 F.3d 441, 444-45 (6th Cir. 1993).]
We are in full agreement that the public policy underpinning Rule 4:37-1(a) and Rule 4:6-2 commands like construction. Moreover, in this case, defendants did not include any extraneous materials in their motion to dismiss, rendering any concern for subterfuge inapplicable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION