As it is, it is most unlikely that Columbia can raise laches in a State court suit filed late as allowed by Galligan. Columbia knew there was no diversity when it filed its answer in 1978, raised it in the most inconspicuous manner possible, and said or did nothing more on the issue knowing that if judgment for plaintiff went against it, the judgment could yet be attacked for lack of jurisdiction. Since it was brought into the case on plaintiff's summons to the amended complaint, it may have also had in mind challenging any judgment against it on the cross-claim, for which no independent summons was issued as it would have been for a third-party complaint.
Under these circumstances, New Jersey is most likely to accept the late filing and to reject any claim of laches raised by Columbia.
At the hearing of June 7, 1982, plaintiff's attorney said that a complaint against Columbia alone had been filed that day in Superior Court. The estate's attorney said that it would not raise any defense of statute of limitations to a suit against it in Superior Court. Plaintiff raised the question whether a dismissal here and refiling in Superior Court would cut down the interest chargeable against the estate. The court sees no reason why it should. What is claimed is a contractual finder's fee or commission which, if the claim is valid, was due and payable at the latest when the closing took place. The obligation is one to pay money, and compensatory damages necessarily include the principal sum plus compensation for loss of its use, which is interest. Any other rule would enable an obligor to deny liability to pay money due, and have free use of the money from its due date to the date of judgment. Merely to suggest this is to display its fallacy.
New Jersey has adopted a rule, R. 4:42-11 (b), to allow pre-judgment interest on tort claims, which runs from a date 6 months after the cause arises or from the date "an action" is instituted, but this rule was adopted to discourage dilatory conduct by defendants on tort claims. Before that rule, no interest ran on tort claims until reduced to judgment. It is of some significance that the court saw no need to adopt any rule for contract claims involving obligations to pay money. As with both the original complaint and the amended complaint here, damage demands for contract claims of this kind are for the amount that is due and unpaid, with interest and costs.
If the different rule for tort claims operates to reduce plaintiff's claim against Columbia, it is a disadvantage the court cannot consider because it has no jurisdiction at all over the claim against Columbia, and plaintiff is as much at fault for not checking out the matter of jurisdiction the moment it was raised in Columbia's answer.
On the fourth element, then, the court finds that plaintiff has an adequate remedy if the entire action is dismissed for inability to continue it with Columbia as a main defendant and with its cross-claim against the estate.
Each case is to be evaluated on its own facts. Each case is in this sense unique. Here, the evaluation of all four factors points to dismissal of the whole case so that it may be tried but once in the Superior Court where all these collateral questions will be non-existent. The goal is for a single trial with all parties and issues tried together if at all feasible. That goal simply cannot be realized here. All that could conceivably be tried here would be plaintiff's claim against the estate and the estate's cross-claim against Columbia. The second suit would have to be on plaintiff's claim against Columbia and its cross-claim against the estate. Such a sequence of trials under the apparent facts of this case would be a disastrous miscarriage of the judicial process and would further delay settlement of an estate of a decedent who died in 1974.
It is indeed unfortunate that the defective jurisdiction was not noticed four years ago when it was first pleaded. Dismissal, coupled with refiling in Superior Court under Galligan, should go far to discourage the concealment of defects of jurisdiction and encourage prompt and careful attention to such questions.
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