THOMAS HAWKINS VS. BRANT QUICK(L-2658-15, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 22, 2017
• Docket: A-4142-15T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4142-15T1

THOMAS HAWKINS,

Plaintiff-Appellant,

v.

BRANT QUICK and FLORIDA COACH, INC.,

Defendants-Respondents. ___________________________________________

Argued August 15, 2017 – Decided September 22, 2017

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2658-15.

Ronald A. Rosa argued the cause for appellant (Jacobs & Barbone, PA, attorneys; Louis M. Barbone and Daniel J. Solt, on the brief).

Dennis M. Marconi argued the cause for respondents (Barnaba & Marconi, LLP, attorneys; Mr. Marconi and Tyler L. Williams, on the brief).

PER CURIAM

Plaintiff Thomas Hawkins, a New Jersey resident, was a

passenger on a bus driven by defendant Brant Quick and owned by defendant Florida Coach, Inc. (Coach and collectively,

defendants). On November 23, 2013, while traveling on Interstate

30 in Texas, the bus crashed into a bridge underpass. Plaintiff

filed this complaint, alleging defendants' negligence caused him

personal injuries.

Defendants moved to dismiss the complaint in lieu of an

answer, arguing lack of personal and subject matter jurisdiction.

In a supporting certification, defense counsel stated that Quick

is a resident of Florida, and Coach was formed and established

under Florida law with its headquarters in Kissimmee, Florida.

Although plaintiff's appellate brief claims that he filed a

certification and brief in opposition, the appendix does not

contain copies of either.

Without oral argument, which neither side apparently sought,

the judge granted defendants' motion. His April 18, 2016 order

dismissed the complaint with prejudice because "[p]laintiff

provide[d] no factual basis to establish either personal or subject

matter jurisdiction as to [d]efendants."1 This appeal followed.

1 The motion was brought only on behalf of Coach. However, the judge's order dismissed the complaint as to both defendants and there is apparently no dispute that he considered the motion as to both defendants.

2 A-4142-15T1 Plaintiff argues the judge should have permitted

jurisdictional discovery before dismissing the complaint. We

disagree and affirm dismissal of the complaint.

"The question of in personam jurisdiction is a mixed question

of law and fact." Citibank, N.A. v. Estate of Simpson, 290 N.J.

Super. 519, 532 (App. Div. 1996). Although we defer to the judge's

factual findings when supported by substantial, credible evidence,

we review the judge's legal conclusion regarding personal

jurisdiction de novo. Mastondrea v. Occidental Hotels Mgmt. S.A.,

391 N.J. Super. 261, 268 (App. Div. 2007).

"If a cause of action is unrelated to the defendant's contacts

with the forum state, the court's jurisdiction is general."

Baanyan Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466, 474

(App. Div. 2013) (quoting Mische v. Bracey's Supermarket, 420 N.J.

Super. 487, 491 (App. Div. 2011) (internal quotations omitted)).

"Th[e] standard for establishing general jurisdiction is a

difficult one to meet, requiring extensive contacts between a

defendant and a forum." Mische, supra, 420 N.J. Super. at 492

(internal quotations omitted).

"The burden [is] on plaintiff to allege or plead sufficient

facts with respect to jurisdiction." Blakey v. Cont'l Airlines,

Inc., 164 N.J. 38, 71 (2000). "[A] plaintiff must establish

defendant's contacts with the jurisdiction through the use of

3 A-4142-15T1 'sworn affidavits, certifications, or testimony.'" Jacobs v. Walt

Disney World, Co., 309 N.J. Super. 443, 454 (App. Div. 1998)

(citations omitted).

We reject plaintiff's assertion that he was entitled to

jurisdictional discovery before the judge dismissed his complaint.

In Blakey, while recognizing the use of jurisdictional discovery,

the Court placed the burden on plaintiff to initially "state with

specificity the factual basis of [his] jurisdictional claims."

Blakey, supra, 164 N.J. 71. While the level of specificity may

be limited in a case with jurisdictional uncertainty, that does

not relieve the plaintiff of at least "alleg[ing] or plead[ing]

sufficient facts with respect to jurisdiction." Ibid.

Plaintiff's complaint alleged no facts establishing New

Jersey's jurisdiction over defendants. Defendants asserted

sufficient facts to establish they had no territorial presence in

this state. The burden then shifted to plaintiff, who had to

demonstrate why defendants nonetheless were amenable to personal

jurisdiction based on minimum contacts with New Jersey. Ibid.

Notably, plaintiff supplied no facts in opposing defendants'

motion that established any basis for personal or subject matter

jurisdiction, and plaintiff was not entitled to jurisdictional

discovery in their absence.

4 A-4142-15T1 Additionally, plaintiff contends it was error to dismiss the

complaint with prejudice. We agree.

"Generally, a dismissal that is 'on the merits' of a claim

is with prejudice, but a dismissal that is 'based on a court's

procedural inability to consider a case' is without prejudice."

Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 243 (1998) (quoting

Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 415-

16 (1991)). A dismissal based upon lack of jurisdiction is not

an adjudication on the merits. Exxon Research & Eng'g. Co. v.

Indus. Risk Insurers, 341 N.J. Super. 489, 519 (App. Div. 2001);

see also R. 4:37-2(d) (excepting dismissal for lack of jurisdiction

from other types of dismissals that act as an adjudication on the

merits).

We therefore reverse the order to the extent it dismissed

plaintiff's complaint with prejudice. We specifically refrain

from addressing whether, assuming he can establish jurisdiction,

plaintiff may file a new complaint that is not time-barred pursuant

to N.J.S.A. 2A:14-2 (requiring a personal injury claim to be filed

within two years of the date it accrued).

Affirmed in part; reversed in part.

5 A-4142-15T1