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Lefcourt Associates, Ltd v. Converted Organics of Woodbridge

June 27, 2011

LEFCOURT ASSOCIATES, LTD., ALLIANCE SHIPPERS, INC., DIRECT SHIPPERS ASSOCIATION, INC., DIRECT COAST TO COAST, LLC, SELECTIVE TRANSPORTATION CORP., AND GOTHAM DISTRIBUTION CORP., PLAINTIFFS-APPELLANTS,
v.
CONVERTED ORGANICS OF WOODBRIDGE, LLC, CONVERTED ORGANICS, INC., AND CENTRAL JERSEY WASTE & RECYCLING, INC., DEFENDANTS-RESPONDENTS, AND RECYCLING TECHNOLOGY DEVELOPMENT, LLC, BAYSHORE RECYCLING CORP., MONTECALVO DISPOSAL SERVICES, INC., COASTAL METAL RECYCLING CORP., F. MONTECALVO CONTRACTING CO., INC., DALCON CONSTRUCTION CORP., CONSTRUCTION TRANSPORTATION SERVICES LLC, ENVIRONMENTAL SOIL MANAGEMENT, LLC, ACTION CARTING ENVIRONMENTAL SOIL MANAGEMENT OF NEW JERSEY, LLC, ACTION CARTING ENVIRONMENTAL SERVICES, INC., EARTHCARE ENVIRONMENTAL MANAGEMENT OF NEW JERSEY, LLC, EARTHCARE ENVIRONMENTAL MANAGEMENT CORPORATION, ORGANIC DIVERSION, LLC, AND XANGO, LLC, DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-99-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 7, 2011

Before Judges Graves, Messano, and Waugh.

Plaintiffs Lefcourt Associates, Ltd., Alliance Shippers, Inc., Direct Shippers Association, Inc., Direct Coast to Coast, LLC, Selective Transportation Corp., and Gotham Distribution Corp. (Lefcourt) appeal the August 27, 2010 order of the General Equity Part, which retroactively transformed the dismissal of Lefcourt's complaint in Docket No. C-99-09 (Lefcourt I) from a dismissal without prejudice to a dismissal with prejudice. We reverse and vacate the August 27 order.

I. We discern the following facts and procedural history from the record on appeal.

In May 2009, Lefcourt filed its five-count complaint in Lefcourt I in Middlesex County. The complaint alleged that the food waste recycling activities conducted by the defendants, including Converted Organics of Woodbridge, LLC, and Converted Organics, Inc. (Converted), constituted (1) private and public nuisances (counts one and two); (2) negligence (count three); (3) continuing trespass (count four); and (4) violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, (count five). The complaint was amended three times to add additional claims and parties.

In January 2010, the General Equity judge set April 19, 2010, as the preemptory trial date. In March 2010, Lefcourt filed a motion to suppress Converted's answer or, in the alternative, to compel discovery. It also sought to file a fourth amended complaint and to adjourn the trial date.

On April 1, 2010, the parties appeared before the judge to place a settlement on the record regarding defendants other than Converted.*fn1 After the settling parties placed the terms of the settlement on the record, they agreed to a stipulation of dismissal to implement the settlement. The dismissal was with prejudice as to some claims and without prejudice as to others.

The judge then heard argument on Lefcourt's motion. Lefcourt's counsel argued that Converted had failed to provide the names of certain hauling companies it had used in connection with its operations. As a consequence, counsel argued that Lefcourt should be permitted to amend the complaint to name those haulers as additional defendants. It also sought to add four new claims. The addition of new parties would, in turn, require adjournment of the trial date. Counsel characterized the haulers as "necessary and indispensable parties." See R. 4:28-1.

The judge denied Lefcourt's motion to amend. He rescheduled the trial date to April 21 to accommodate Lefcourt's counsel's schedule based on personal reasons. Counsel then requested a further adjournment because "the discovery [was] substantially incomplete" and because of an out-of-state seminar he wished to attend. The judge denied any further adjournment, noting that, in February 2010, Lefcourt's counsel had declined his offer of trial dates in May.

Counsel for Converted and Lefcourt subsequently met with the judge in chambers. Nothing was put on the record with respect to the discussion in chambers. On April 12, the judge entered two orders resulting from the events of April 1. The first order denied Lefcourt's motion with respect to discovery, amendment, and adjournment. The second order provided that the parties had settled the litigation and that it was "dismissed without prejudice."

On April 26, Lefcourt's counsel wrote the judge, pointing out that, although there had been settlement between Lefcourt and other defendants, no settlement had occurred between Lefcourt and Converted. Instead, the claims against Converted had been "voluntarily dismissed without prejudice." He requested entry of an order "more accurately describing the disposition of the case."

The judge replied on April 28, explaining that he understood why Lefcourt's counsel had taken issue with the settlement order and requesting that counsel submit a corrected order under the five-day rule, Rule 4:42-1(c). On May 12, Lefcourt's counsel submitted a proposed corrective ...


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