On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-79-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Grall and Chambers.
Plaintiff Gary T. Grella, formerly employed by defendant Prebon Yamane (USA) Inc. (Prebon) and supervised by defendant Keith Miles, appeals from an order dismissing his complaint alleging violations of the Conscientious Employee Protections Act (CEPA), N.J.S.A. 34:19-1 to -14, and compelling arbitration of his CEPA claims. Although an order compelling arbitration is interlocutory, see Wein v. Morris, 388 N.J. Super. 640, 652-55 (App. Div. 2006), certif. granted, 190 N.J. 254 (2007), in the interest of justice we exercise our discretion and grant leave to appeal as if a timely motion were filed. See R. 2:2-4; R. 2:5-6(a). We conclude that Prebon waived the right to compel arbitration. For that reason, we reverse and remand for further proceedings.
Plaintiff was first employed by Prebon in 1989. He reported to Miles for approximately five years. On January 5, 2004, Miles, who was then President and CEO of Prebon, told plaintiff that his contract would not be renewed. Plaintiff's employment with Prebon was terminated effective April 5, 2004. He is currently employed by ICAP North America (ICAP). In his complaint, plaintiff alleges that Miles and Prebon took adverse action against him based on his objection to misleading financial reporting practices.
On January 4, 2005, plaintiff filed his complaint alleging CEPA violations by Miles and Prebon. Plaintiff also named Collins Stewart Tullet PLC, a company that plaintiff alleged had recently acquired Prebon, as a defendant. On February 22, 2005, plaintiff filed an amended complaint. Prebon filed its answer to the amended complaint on February 24, 2005. Prebon's answer does not include a reference, claim or defense based on a contractual right to compel arbitration.
Plaintiff was unable to serve Miles in New Jersey. On October 21, 2005, the court dismissed plaintiff's complaint against Miles due to plaintiff's failure to effectuate service. Prebon acknowledges that it first gave plaintiff Miles' address in Turks and Caicos Islands, in its December 2005 response to plaintiff's interrogatories, which were served on March 8, 2005. Plaintiff did not effectuate the overseas service until May 2006.
Miles did not file an answer, although plaintiff had agreed to extend the time within which Miles was required to answer until June 30, 2006. Rather, on June 30, 2006, Prebon and Miles, then represented by the same attorney, moved to dismiss the complaint and compel arbitration. The motion was granted on August 7, 2006.
During the twenty months between the filing of the complaint and the entry of the order compelling arbitration, the parties conducted the litigation as follows.
As noted above, plaintiff served his interrogatories on March 8, 2005. On March 10, 2005, Prebon and plaintiff filed a stipulation dismissing with prejudice all claims against Collins Stewart Tullet PLC. The parties were referred to a court-appointed mediator, and they attended mediation. The court entered two orders extending the mediation period, one on December 5, 2005, and the other on April 5, 2006.
Depositions were taken. Prebon deposed plaintiff on two separate occasions. Prebon also deposed plaintiff's former executive coach and his treating psychologist. Plaintiff deposed two employees of Prebon.
The parties litigated and negotiated discovery issues. Prebon subpoenaed plaintiff's current employer and his wife. Plaintiff moved to quash both of those subpoenas. Prebon and plaintiff reached an agreement on the subpoena directed to plaintiff's employer, and plaintiff withdrew his motion. The court denied plaintiff's motion to quash the subpoena directed to plaintiff's wife. Prebon also moved for a protective order prior to producing its records. Plaintiff and Prebon were able to negotiate an order acceptable to both.
The discovery end date was extended. A discovery end date of May 21, 2006, was set. On Prebon's motion, the end date was ...