Timeliness is Everything – An unfortunate parable of form over substance winning the day.

January 9, 2019

By Francine Foner, Esq. and Ty Hyderally, Esq.

In November 2016, James Murray filed a complaint against his former employer, Comcast Cable Communications Management, LLC, and additional individual defendants, alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., and the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq.  Murray v. 1 Comcast Corp., 2019 N.J. Super. LEXIS 4 (App. Div., Jan. 8, 2019). Murray also subsequently amended his complaint to allege breach of contract claims. On June 9, 2017, the trial judge granted defendants’ motion to compel arbitration and stayed the proceeding pending the outcome of the arbitration hearing. The parties received the order compelling arbitration on June 30, 2017.

On July 20, 2017, plaintiff filed a motion for reconsideration of the court’s order compelling arbitration.  On November 16, 2017, the trial judge reconsidered his decision compelling arbitration and granted plaintiff’s motion to permit the case to proceed in the court, rather than in an arbitral forum. Defendants filed an appeal of the order granting plaintiff’s motion for reconsideration.

The defendants did not raise any issue of the timeliness of the filing or service of the motion for reconsideration. However, the Appellate Division, on its own accord, raised the issue of whether the trial court had subject matter jurisdiction to consider plaintiff’s motion for reconsideration because it was filed and served more than 20 days after plaintiff’s counsel received the order compelling arbitration, in violation of New Jersey Court Rule 4:49-2. That rule states, in relevant part, “a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it.” (emphasis added).

The Appellate Division observed that while plaintiff’s counsel had mailed plaintiff’s motion for reconsideration to the court and defendants’ counsel on July 20, 2017, which was within the required 20-day time period, the motion was not received and filed by the court until July 26, 2017, and was not received by defendants’ counsel until after July 20, 2017. Therefore, the Appellate Division found that plaintiff had not filed or served the motion for reconsideration within the 20-day period required by R. 4:49-2.

The Appellate Division further noted that R. 1:3-4 (c) “‘expressly’ prohibits ‘the parties’ and ‘the court’ from enlarging the time  specified by Rule 4:49-2.” Id. at *5-6, citing Hayes v. Turnersville Chrysler Jeep, 453 N.J. Super. 309, 313 (App. Div. 2018).  Thus, due to the mandatory nature of R. 4:49-2 and the prohibition on relaxation of that rule under R. 1:3-4(c), the Appellate Division held “the Law Division did not have subject matter jurisdiction at the time it granted plaintiff’s untimely motion under Rule 4:49-2 for reconsideration of its June 9, 2017 final judgment granting defendants’ motion to compel arbitration.”  Therefore, the Appellate Division vacated the trial court’s order and remanded the matter to allow the parties to proceed to arbitration.

The issue that caused the motion for reconsideration to be untimely in this matter might not have arisen if it had occurred after the implementation of electronic filing.  If electronic filing was in place, the motion would have been filed and served instantaneously.  Unfortunately, in Atlantic County, where the Murray matter was filed, electronic filing was not implemented until October 12, 2017. (https://www.njcourts.gov/notices/2017/n171026a.pdf).   Certainly a case of form over substance winning the day.

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