MOHAMMAD MOHAMMAD v. KYMBERLY COHEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02089-13T1

MOHAMMAD MOHAMMAD, AHMAD MOHAMMAD, ALI MOHAMMAD, and LAMA MOHAMMAD,

Plaintiffs-Appellants,

v.

KYMBERLY COHEN and HARVEY COHEN,

Defendants-Respondents.

November 14, 2014

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L111-13.

Mary Ann R. Andrews argued the cause for appellants (Jaloudi & Associates, L.L.C., attorneys; Ms. Andrews, of counsel and on the brief).

Seth D. Griep argued cause for respondents (Harwood Lloyd, L.L.C., attorneys; Russell A. Pepe, of counsel and on the brief; Mr. Griep, on the brief).

PER CURIAM

Plaintiffs Mohammad Mohammad, Ahmad Mohammad, Ali Mohammad, and Lama Mohammad appeal from a December 6, 2013 Law Division order denying their motion to reinstate their complaint and transfer their case to Pennsylvania. Plaintiffs failed to cure the lack of personal jurisdiction that resulted in the entry of the original dismissal order. Moreover, we can neither consider a case absent personal jurisdiction, nor transfer a matter to a sovereign jurisdiction absent an authorizing statute. While we therefore affirm, we also remand for the entry of an amended order of dismissal without prejudice.

I.

Plaintiffs allege that on March 6, 2011, in Philadelphia, Pennsylvania, defendants negligently caused a motor vehicle accident that resulted in plaintiffs sustaining bodily injuries and resulting damages. Plaintiffs reside in North Bergen and defendants reside in Bensalem, Pennsylvania.

On March 4, 2013, plaintiffs filed suit against defendants in Hudson County. Defendants moved to dismiss for lack of personal jurisdiction, and on May 3, 2013, after briefing and oral argument, the trial court dismissed plaintiffs' complaint with prejudice.1

On November 12, 2013, plaintiffs filed a motion "(1) [to] reinstate plaintiffs' complaint; and (2) [to] transfer the matter to the Philadelphia Court of Common Pleas in the Commonwealth of Pennsylvania." Plaintiffs cited Rule 1:13-7 and Rule 4:37-2(d) in support of their motion, and argued that reinstatement and transfer would allow them to avoid the bar of Pennsylvania's statute of limitations.

While initially noting that plaintiffs' motion was really a motion for reconsideration, which would otherwise be time barred, the trial court exercised its discretion and considered the motion as if timely filed. See R. 1:1-2. While finding no basis for the reinstatement of plaintiffs' complaint or the transfer of the case to Pennsylvania, the court stated that it had initially dismissed the case with prejudice because it "did not find that there was any way that [the] jurisdictional issue could have been cured." The court explained its concern that a dismissal without prejudice, "would have suggested that there would be something to cure the jurisdictional impediment." The court then entered an order denying plaintiffs' motion. This appeal followed.

II.

Our review of the record demonstrates that the trial court did not err by denying plaintiff's motion to reinstate, or by treating plaintiffs' motion as a motion for reconsideration. We review a denial of reinstatement for abuse of discretion. Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 382 (App. Div. 2011). "'The right to reinstatement is . . . granted when plaintiff has cured the problem that led to the dismissal . . . .'" Id. at 384 (quoting Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007)); R. 1:137(d). Here, plaintiffs concede an ongoing lack of personal jurisdiction. Therefore, plaintiffs failed to cure the problem that led to the dismissal, and the trial court did not err by denying plaintiffs' motion.

Even if the case were reinstated, the court lacks the authority to transfer a civil claim to a sovereign jurisdiction. Plaintiffs argue by analogy to the transfer of child custody matters, Griffith v. Tressel, 394 N.J. Super. 128, 148 (App. Div. 2007), and to the federal courts' ability to transfer venue amongst the district courts, Lafferty v. Gito St. Riel, 495 F.3d 72, 76 (3d Cir. 2007). Plaintiffs' analogies are inapposite. Pennsylvania explicitly authorized our ability to transfer child custody cases to that jurisdiction by its adoption of the Uniform Child Custody Jurisdiction and Enforcement Act. 23 Pa.C.S. 5443. There is no comparable statute authorizing the transfer of civil cases amongst sovereign jurisdictions. As to the federal courts, while 28 U.S.C.A. 1404 permits the transfer of venue between federal districts, those cases remain within the federal government's sovereign jurisdiction.

Transferring a civil claim without Pennsylvania's explicit consent would improperly interfere with Pennsylvania's sovereign powers. See Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 345 (1995). We cannot require a sovereign court take up a New Jersey case, and we cannot, as plaintiffs request, take any action that might impair a sovereign state's ability to enforce its statute of limitations. Ibid. Authority over Pennsylvania's statute of limitations rests with the courts of Pennsylvania, and it is left to them to determine whether their statute should be tolled pending resolution of the instant appeal. See, e.g. Galligan v. Westfield Ctr. Serv., 82 N.J. 188, 194-95 (1980) (tolling New Jersey statute of limitations pending dismissal of a related federal lawsuit); Mitzner v. W. Ridgelawn Cemetery, 311 N.J. Super. 233, 239-40 (App. Div. 1998) (tolling New Jersey statute of limitations spending dismissal of New York lawsuit).

We can neither reinstate a civil case when we lack personal jurisdiction over the defendants, nor transfer such a case to a sovereign jurisdiction. Accordingly, we affirm the trial court's denial of plaintiffs' motion to reinstate and transfer.

We do conclude, however, that dismissal of plaintiffs' complaint based upon lack of jurisdiction should have been without prejudice. The trial court addressed this issue as a motion for reconsideration, and affirmed the prejudicial effect of its previous ruling. Motions for reconsideration are addressed to the trial court's sound discretion. Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). However, we review issues of law, including the interpretation of court rules, de novo. Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995); State v. McCabe, 201 N.J. 34, 45 (2010).

"As a general rule, a dismissal on the merits is with prejudice while a dismissal based on the court's procedural inability to consider a case is without prejudice." Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 4:37-2 (2015) (citing Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 415-16 (1991)). Dismissal for lack of jurisdiction is not an adjudication on the merits. R. 4:37-2(d) ("[A]ny dismissal not specifically provided for by R. 4:37, other than a dismissal for lack of jurisdiction, operates as an adjudication on the merits."). See also Exxon Research & Eng'g Co. v. Indus. Risk Insurers, 341 N.J. Super. 489, 519 (App. Div. 2001) (holding a dismissal for lack of jurisdiction is not an adjudication on the merits, and therefore should not have been with prejudice); Starrett v. Starrett, 225 N.J. Super. 150, 155 (App. Div. 1988) (finding a dismissal for lack of jurisdiction did not have prejudicial effect, despite the fact that the trial court order dismissed the complaint with prejudice).

The trial court here dismissed plaintiffs' complaint with prejudice after concluding plaintiffs could not cure the lack of personal jurisdiction. As previously noted, a case dismissed without prejudice cannot be reinstated without cure of the procedural defect that caused the dismissal. Baskett, supra, 422 N.J. Super. at 384. A lack of personal jurisdiction can be cured through "transient" jurisdiction by "causing the summons and complaint to be personally served within this State." R. 4:4-4(a)(1). See ElMaksoud v. El-Maksoud, 237 N.J. Super. 483, 486-89 (Ch. Div. 1989).

In addition to potentially precluding an otherwise proper motion to reinstate, giving prejudicial effect to a dismissal for lack of personal jurisdiction incorrectly signals to sovereign courts that we adjudicated the case on the merits. See, e.g., Velasquez v. Franz, 123 N.J. 498, 505 (1991) (holding a dismissal with prejudice by a sovereign court constitutes an adjudication on the merits that precludes re-litigation). Attempting to predict whether a plaintiff will be able effectuate a cure of a jurisdictional deficiency can only serve to unnecessarily preclude an adjudication on the merits. "[W]henever possible, litigation should be resolved on the merits rather than on procedural violations." The Trust Co. of N.J. v. Sliwinski, 350 N.J. Super. 187, 192 (App. Div. 2002). Therefore, we conclude the May 3, 2013 dismissal should have been without prejudice.

Affirmed and remanded with instructions to amend the May 3, 2013 order to dismiss the case without prejudice.

1 Defendants' motion requested dismissal of plaintiffs' complaint without indicating whether they were seeking dismissal with or without prejudicial effect. The motion court did not indicate, at that time, any basis for dismissing the complaint with prejudice.