Before Judges Stern, Wefing and Steinberg.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Plaintiff David A. Garfinkel, M.D. appeals from an order, entered January 4, 1999, granting defendants' "Motion to Dismiss [the complaint] and Compel Arbitration." While acknowledging that his employment with defendant Morristown Obstetrics and Gynecology Associates ("MOGA") could be terminated with or without cause, plaintiff seeks damages for (1) breach of contract based "on the procedure by which he was terminated" (counts one and two), (2) discrimination in violation of the New Jersey Law Against Discrimination ("L.A.D."), N.J.S.A. 10:5-1 to -42, asserting he was terminated "solely because plaintiff is a man" (count three), and (3) "post-termination tort claims," which include claims of tortious interference with economic advantage (count four) and defamation (count five). On his appeal, plaintiff contends that the arbitration clause in his agreement with MOGA did not and could not waive his right to a jury trial; that the clause does not apply to the post-termination tort claims or to the claims against the individual defendants who were not party to the agreement, and that defendants have "waived any entitlement to arbitration."
The arbitration clause in paragraph 18 of plaintiff's agreement with MOGA provides:
[e]xcept as otherwise expressly set forth in paragraphs 14 and 15 hereof [which no party deems to be relevant], any controversy arising out of, or relating to, this Agreement or the breach thereof, shall be settled by arbitration in Morristown, New Jersey, in accordance with the rules then obtaining of the American Arbitration Association, and judgment upon any award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof. [(emphasis added).] *fn1
Plaintiff argues both that "because there was no voluntary and knowing agreement to submit future discrimination claims to arbitration" and "because the arbitration provision . . . was involuntarily imposed on plaintiff as a condition of his employment," the arbitration clause is neither applicable nor enforceable.
We initially reject the claim that the demand for arbitration was waived. We agree with Judge Catherine Langlois' analysis in this regard:
First, the court holds that the request to dismiss the matter and refer to arbitration has not been waived by the fact that the defendant has answered the complaint and asserted counterclaims. The fact is that an affirmative defense had been asserted that the issues are to be arbitrated; that no discovery has actually commenced; and that this motion is brought within 30 days of the answer itself. See generally, Comments to Rule 4:5-4.
Defendants MOGA and Ramieri asserted as an affirmative defense that "plaintiff's complaint is barred by the Arbitration Clause in the agreement entered into between the plaintiff and the defendants." See R. 4:5-4. While defendant Jacobwitz failed to include this affirmative defense in his answer dated November 5, 1998, it is undisputed that on November 25, 1998, less than ninety days after the complaint was filed, defendants MOGA and Ramieri moved to compel arbitration in accordance with the parties' agreement, and Jacobwitz joined the motion. See R. 4:6-2, -3. In any event, "[t]he mere filing of a complaint or an answer to the complaint is not a waiver of arbitration. . . . The court has the power, anytime before judgment, to refer the dispute to arbitration." Wasserstein v. Kovatch, 261 N.J. Super. 277, 290 (App. Div.) (citations omitted), certif. denied, 133 N.J. 440 (1993).
In granting defendants' motion to dismiss the complaint, Judge Langlois wrote:
[t]here is specific precedent, under the cases cited, that an employee may knowingly and voluntarily waive statutory remedies under LAD in favor of arbitration and be bound by that agreement. These decisions look to basic contract principles and to the Supreme Court decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 11 S.Ct. 1647, 114 L.Ed.2d 26 (1991), that even claims based upon discrimination may be arbitrated. See also, Seus v. John Nuveen & Co., Inc., 146 F.3d 175 (3d Cir. 1998) (Title VII claims are subject to compulsory arbitration); Bleumer v. Parkway Insurance Co., 277 N.J. Super. 378, 401 (Law Div. 1994).
The focus of the courts, therefore, is not on the right to provide for arbitration, but rather on whether there is an agreement to arbitrate. As Young, Singer, and Galarza instruct, if both parties knowing[ly] agree to arbitrate a particular dispute, and there are circumstances that assure mutual agreement - in contrast to a take-it-or-leave-it, unequal bargaining situation - the court ought to compel arbitration and carry out their wishes. Caldwell v. KFC Corp., 958 F. Supp. 962, 975 (D.N.J. 1997)[.]
In that regard, the employment agreement here was negotiated, with counsel for plaintiff, between highly educated, medical professionals of equal bargaining position. Plaintiff acknowledges that he was able to negotiate with regard to the other provisions of the agreement but that defendant took the position that the arbitration clause was standard and mandatory. So, he agreed to it. That ...