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

NOT FOR PUBLICATION WITHOUT THE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