On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4716-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Messano.
Plaintiff Eldridge Hawkins LLC appeals from the August 15, 2008 order dismissing its complaint against defendant Copycat with prejudice "pursuant to the Entire Controversy Doctrine [.]" We affirm.
In July 2006, Copycat filed its complaint in the Small Claims Section of the Special Civil Part naming Eldridge Hawkins, an attorney at law, as the sole defendant. Copycat is in the business of providing computer services and alleged that it had provided such services to Hawkins between October and December 2005, and that its invoices remained unpaid. It sought the recovery of $2608.13, plus costs. Hawkins never appeared for trial and default judgment was entered in favor of Copycat on August 24, 2006.
Hawkins moved to vacate the default judgment in September 2006. In his notice of motion, he claimed that he had failed to diary the case and "missed appearing on the return date." The notice also claimed that Copycat's agreement was made with "the corporate entity," presumably the plaintiff in this case, the charges were disputed, and the work was not completed. In his cover letter that accompanied the motion, Hawkins claimed that he also had another matter in another court on August 24, 2006, and his "staff failed to call to advise th[e] Court of [his] conflict and obtain a new trial date."
On October 24, 2006, Judge Rachel N. Davidson denied the motion. Her order reflects "[t]he claim of incorrect entity" was "not before the court" because no "competent evidence" supported the motion. She noted Hawkins filed "no certification" with the motion, and "no meritorious defense was presented." Hawkins never sought reconsideration, nor did he appeal from this order.*fn1
On May 23, 2007, plaintiff filed this complaint in the Law Division. It sought damages, alleging that it had contracted with Copycat to "hook up computers" and that the work was done "in a non professional manner," causing plaintiff to hire another contractor. The complaint was signed by Hawkins as plaintiff's "Principal Owner." Copycat filed an answer and asserted the Entire Controversy Doctrine (the ECD) as an affirmative defense. Its pleading included a counterclaim seeking additional damages, "[s]hould plaintiff be successful in proceeding with the instant litigation."
On July 8, Copycat moved to dismiss the complaint pursuant to Rule 4:30A, which recognizes the ECD as a potential bar to subsequent actions. In response, plaintiff alleged it was the true party in interest to the contractual dispute, and claimed it was never served in the prior litigation since only Hawkins was served and sued individually. It claimed the ECD, therefore, did not apply to its complaint.*fn2
Copycat's motion was heard on the papers by Judge F. Michael Giles on August 15, 2008. Judge Giles reiterated the procedural history and decided plaintiff's complaint must be dismissed pursuant to the ECD. The judge concluded that plaintiff "misconstrue[d] the rule and the case law" which requires "joinder of actions and not joinder of parties."
Plaintiff reiterates its arguments before us. We affirm substantially for the reasons expressed by Judge Giles. R. 2:11-3(e)(1)(A). We add only the following brief comments.
Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave ...