RISIKATV OLAJIDE VS. ONEMAIN FINANCIAL (DC-001626-15, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 23, 2017
• Docket: A-1171-15T3
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1711-15T3

MARIA OROZCO,

Plaintiff,

v.

TADROS B. BOULIS and GEICO GENERAL INSURANCE COMPANY,

Defendants.

______________________________

MARIA OROZCO, Individually and DANIEL PARRA, a minor by his Guardian Ad Litem, MARIA OROZCO,

Plaintiffs-Respondents,

CORNELIO CASTILLO-MIESES and VMC TRUCKING CORP.,

Defendants-Appellants,

and

GEICO GENERAL INSURANCE COMPANY,

Defendant.

______________________________ Argued April 4, 2017 – Decided April 27, 2017

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-577-15.

Shaji M. Eapen argued the cause for appellants, VMC Trucking Corp. and Cornelio Castillo-Mieses (Morgan Melhuish Abrutyn, attorneys; Mr. Eapen, of counsel and on the briefs; Michael T. Buonocore, on the briefs).

Kenneth M. Harrell argued the cause for respondent, Maria Orozco (Law Office of Ana C. Moreira, attorney; Mr. Harrell, on the brief).

PER CURIAM

Defendants VMC Trucking Corp. and Cornelio Castillo-Mieses

appeal from two orders, both filed on November 10, 2015, concerning

the voluntary dismissal without prejudice of plaintiffs' lawsuit.

We affirm.

In brief summary, plaintiff Maria Orozco filed two separate

auto negligence lawsuits, alleging that she was injured in two

different rear-end collisions. Orozco's first lawsuit, Orozco v.

Boulis, L-513-14, concerned a February 15, 2012 accident. That

lawsuit was given a discovery end date of August 13, 2015. The

second lawsuit, Orozco v. Castillo-Mieses, L-577-15, was filed on

February 10, 2015, on behalf of Orozco and her minor son, and

2 A-1711-15T3 concerned a February 10, 2014 accident. The second suit was given

a discovery end date of January 13, 2016.

In April 2015, defendants filed a motion to consolidate the

two cases, which the court granted on May 13, 2015. However,

instead of extending the discovery end date of the older case to

match that of the later-filed case, the consolidation order

shortened the discovery period allowed for the latter case by 150

days and gave both cases the August 13, 2015 discovery end date

that pertained to the older case. On its face, that date appeared

to be a mistake, because the order recited that "8-13-15"

represented "the current discovery end date" in "Docket No. HUD-

L-577-15." In fact, the discovery end date for L-577-15 was

January 13, 2016. The order also removed both cases from

arbitration and set an October 19, 2015 trial date.

Defendants moved for reconsideration, pointing out what they

believed was the error in setting the discovery end date. However,

instead of correcting the apparent mistake, the motion judge denied

the motion, reciting that the "DED was adjusted at time of

consolidation in the court's discretion." There followed a series

of applications by plaintiffs and defendants to extend discovery,

all of which were denied, followed by the parties' respective

motions to strike each other's medical experts as having been

filed outside the discovery deadline, which were granted. The

3 A-1711-15T3 older case settled, leaving pending the newer case, in which Orozco

and her minor son were the plaintiffs.

Facing a looming trial date, plaintiffs requested a case

conference; the court denied the request but adjourned the trial

to December 7, 2015. On October 21, 2015, plaintiffs filed a

motion, pursuant to Rule 4:37-1(b), for permission to take a

voluntary dismissal and to re-file the complaint within the statute

of limitations. Defendants filed a cross-motion seeking dismissal

of the complaint with prejudice; in the alternative, the cross-

motion sought an order providing that all orders "relating to the

exclusion of plaintiffs' discovery are to be binding" in any

subsequently filed action and requiring plaintiffs to reimburse

defendants for "all expenses and costs incurred as a result of

plaintiffs' filing of this lawsuit."

In an order dated November 10, 2015, the motion judge granted

plaintiffs' motion, with the following caveat: "Parties will be

bound by all discovery previously exchanged; no substitution of

any experts without leave of court." In a second order also

filed on November 10, 2015, the judge denied the cross-motion, but

with the same caveat noted on the order. Thus, other than time

spent preparing for trial, once the complaint was re-filed the

parties would be in essentially the same position they were in

4 A-1711-15T3 before the original complaint was dismissed. Defendants appeal

from both November 10, 2015 orders.1

Rule 4:37-1(b) provides that, absent consent, "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." We review a trial court's decisions under Rule

4:37-1(b) for abuse of discretion, and we find none. See Shulas

v. Estabrook, 385 N.J. Super. 91, 97 (App. Div. 2006); Mack Auto

Imports, Inc. v. Jaguar Cars, Inc., 244 N.J. Super. 254, 258

(App. Div. 1990). We might have handled this case differently -

perhaps extending the discovery end date in response to defendants'

reconsideration motion, rather than requiring the parties to meet

an artificially shortened deadline, barring both of their experts,

and essentially forcing plaintiffs to either take a voluntary

dismissal or proceed without an expert. See Shulas, supra, 385

N.J. Super. at 99; Fehnel v. Fehnel, 186 N.J. Super. 209, 212-13

(App. Div. 1982). However, the court's interlocutory case

management orders are not before us on this appeal, and we cannot

say that the judge abused discretion in deciding the Rule 4:37-

1(b) motion.

1 At oral argument, counsel advised us that the complaint was re- filed and is currently pending.

5 A-1711-15T3 As previously noted, the judge's November 10, 2015 order,

allowing plaintiffs to re-file their complaint, bound the parties

to the court's prior discovery rulings, subject to the right,

which they would have had in any event, to seek relief by motion.

While defendants no doubt spent time preparing for trial, there

was no guarantee that the case would have been reached for trial

on the scheduled date. That aside, there should be no duplication

of effort involved in the re-filed action, and we find no abuse

of the judge's discretion in denying defendants' counsel fee

application. See Shulas, supra, 385 N.J. Super. at 99.

Affirmed.

6 A-1711-15T3