RISIKATV OLAJIDE VS. ONEMAIN FINANCIAL (DC-001626-15, SOMERSET COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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,
v.
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
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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
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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
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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.
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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.
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