GAR DISABILITY ADVOCATES, LLC VS. LORNA ORAK (L-7987-17, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4557-17T3

GAR DISABILITY ADVOCATES,
LLC,

Plaintiff-Appellant,

v.

LORNA ORAK and THE PEOPLE'S
DISABILITY ADVOCATES OF
AMERICA, LLC,

Defendants-Respondents.
_______________________________

Submitted March 12, 2019 – Decided August 6, 2019

Before Judges Rothstadt and Gilson.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-7987-17.

Tamra A. Jones, attorney for appellant.

Respondents have not filed briefs.

PER CURIAM
 Plaintiff GAR Disability Advocates LLC appeals from the Law Division's

April 27, 2018 order dismissing its complaint with prejudice for failure to join

necessary parties, Rule 4:28-1, and for violating the Entire Controversy

Doctrine, Rule 4:30A. The complaint alleged plaintiff's direct competitor,

defendant, The People's Disability Advocates of America, LLC (People's) and

its attorney, Lorna Orak, wrongfully used plaintiff's confidential client list that

they obtained from plaintiff's former employees, Miranda Deem and Erica

Dougherty. The motion judge dismissed the complaint because plaintiff failed

to join Deem and Dougherty in this action and because plaintiff's pending federal

court action against People's was voluntarily dismissed due to a lack of

jurisdiction. We reverse and remand as we conclude that the dismissal of the

federal court action did not trigger the bar of the Entire Controversy Doctrine

and that the motion judge failed to conduct the proper analysis for determining

whether Deem and Dougherty were indispensable parties to this action.

I.

Plaintiff is a Delaware limited liability company with its primary place of

business in New Jersey. Its business involves assisting clients with applying for

and receiving government benefits. Plaintiff also maintained satellite offices in

Kentucky and West Virginia that were ultimately closed, resulting in the

A-4557-17T3
2
termination of all employees in those offices. Deem and Dougherty were

employed by plaintiff in those offices.

People's is a New Jersey limited liability company based in Paramus. It

maintains a satellite office in Kentucky. Orak is an attorney and employee of

People's.

According to plaintiff, while it employed Deem and Dougherty, they were

provided with company property as well as access to confidential information,

including client lists. Both individuals received company handbooks and c odes

of conduct that prohibited them from directly or indirectly disclosing

confidential information to a third party after being terminated from their

employment. After plaintiff terminated Dougherty in 2016 and Deem in 2017,

it learned that its clients were being diverted to People's after being contacted

by People's representatives, including Deem and Dougherty.

On June 29, 2017, plaintiff filed a complaint in the United States District

Court for the District of New Jersey seeking an injunction against People's,

Deem, Dougherty, and other terminated employees. Plaintiff's complaint

against People's alleged conversion and tortious interference with existing

business relationships. It sought damages and demanded immediate and

permanent injunctive relief. Prior to filing its answer, People's argued it was

A-4557-17T3
3
not subject to the court's jurisdiction and demanded to be dismissed. Plaintiff

stipulated to the dismissal without any determination about the merits of its

claim.

Plaintiff then filed this action on November 22, 2017, against Orak and

People's. In its new complaint, plaintiff disclosed the continuing federal case

against Deem and Dougherty. 1 Plaintiff's complaint demanded injunctive and

other relief. It alleged conversion, tortious interference with existing business

relationships, misappropriation of trade secrets and confidential information,

and unfair competition. According to its complaint, plaintiff suffered harm as a

result of People's knowing use of plaintiff's company property and defendants'

acquiescence and participation in Deem's and Dougherty's dissemination and

misuse of its confidential information, including trade secrets, to persuade

plaintiff's clients to terminate their relationship with plaintiff and to use People's

services.

1
A search of the federal court's Public Access to Court Electronic Records
(PACER) systems reveals that the federal case against Deem, Dougherty, and
others was transferred on May 23, 2018 from the District of New Jersey to the
Eastern District of Kentucky. See GAR Disability Advocates, LLC v. Deem et
al., No. 0:18-cv-00063-HRW (E.D.Ky. 2018). In May 2019, the parties to that
action stipulated to its dismissal with prejudice. Orak was never a party to that
action.
A-4557-17T3
4
 On April 11, 2018, defendants filed their motion to dismiss plaintiff's

complaint for failure to join necessary parties under Rule 4:28-1, and plaintiff's

alleged violation of the Entire Controversy Doctrine under Rule 4:30A.

Defendants argued that all of the claims alleged against them should have been

brought in one action and that the federal litigation would be determinative of

what would happen in this action. They contended this action could not continue

because of the lack of access to Deem and Dougherty, whom plaintiff failed to

join, and they could not implead the two in this action because there was a

"jurisdictional difficulty," as neither lived nor worked in New Jersey and their

actions presumably took place in Kentucky and West Virginia. It maintained

that the proper venue would have been in one or both of those two state courts.

In opposition, plaintiff argued that its action was not barred by the Entire

Controversy Doctrine. It pointed out that its complaint disclosed the existence

of the pending federal lawsuit against Deem and Dougherty. Plaintiff asserted

that "this [was] . . . a situation of [d]efendant[s'] making" as the only reason

defendants were not parties in that action was because People's would not agree

to the federal court's jurisdiction. It also contended that its voluntary dismissal

of People's from that action did not give rise to an adjudication on the merits in

A-4557-17T3
5
federal court, especially because defendants were not parties to that action and

knew there was going to be another action filed in state court.

As to joinder, plaintiff argued there were "less drastic remedies . . .

available" to defendants in this action than dismissal, such as defendants

impleading Deem and Dougherty. It added that it was unfounded for defendants

to say they did not have a connection to the individuals merely because the two

were employed by People's in different states.

The parties appeared for oral argument on April 27, 2018. After

considering the parties' arguments, the motion judge granted defendants' motion

and dismissed plaintiff's complaint with prejudice. In a statement of reasons

attached to the order, the judge concluded by citing to Gross v. Cohen DuFour

& Assocs., 273 N.J. Super. 617, 622 (Law Div. 1993) and quoting from our

opinion in J-M Mfg. Co., v. Phillips & Cohen, LLP, 443 N.J. Super. 447 (App.

Div. 2015). He stated the following:

In the present matter, Deem and Dougherty are [pled]
as the initiating primary bad actors which gave rise to
any alleged liability on the part of [d]efendants. As
such, Deem and Dougherty are indispensable parties to
the singular controversy which is currently fragmented
here and in the [f]ederal [c]ourt. Application of the
party [joinder] rule and the Entire Controversy Doctrine
require the non-parties to be joined, or alternatively, for
the [c]omplaint to be dismissed.

A-4557-17T3
6
 ....

"The general rule is that the court which first acquires
jurisdiction has precedence in the absence of special
equities." [J-M Mfg. Co., Inc., 443 N.J. Super. at 459].
The instant litigation would cause fragmented
adjudication of claims and deprive the interested parties
of fairness. Instead of commencing and pursuing
[p]laintiff's claims in a proper forum which exercises
jurisdiction over all parties, [p]laintiff is seeking
fragmented litigation. Plaintiff further argues that
[d]efendants should simply join the non-parties to the
litigation, however neither party, Deem or Dougherty,
have sufficient ties to New Jersey. Plaintiff has
attempted to shift this burden to [d]efendants.

This appeal followed.

II.

We turn first to plaintiff's contentions about the motion judge's application

of the Entire Controversy Doctrine. Plaintiff argues that the dismissal of its

federal court action without any adjudication on the merits did not bar it from

proceeding in state court, especially because Orak was never a party to the

federal action. Moreover, there was never an adjudication on the merits and

plaintiff fully complied with the requirements of Rule 4:30A by disclosing the

federal action in which Deem and Dougherty remained as defendants that was

voluntarily dismissed against People's. We agree.

A-4557-17T3
7
 The determination of whether to apply the Entire Controversy Doctrine to

bar a successive claim rests within the discretion of the trial court. Mystic Isle

Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 323 (1995). However, its

application turns on consideration of what is fair and equitable to all parties

under the circumstances presented. Dimitrakopoulos v. Borrus, Goldin, Foley,

Vignuolo, Hyman & Stahl, PC, 237 N.J. 91, 99 (2019).

The doctrine "seeks to impel litigants to consolidate their claims arising

from a single controversy whenever possible." Id. at 98 (quoting Thornton v.

Potamkin Chevrolet, 94 N.J. 1, 5 (1983)). It "requires that a party 'litigate all

aspects of a controversy in a single legal proceeding.'" J-M Mfg. Co., Inc., 443

N.J. Super at 454 (quoting Kaselaan & D'Angelo Assocs., Inc. v. Soffian, 290

N.J. Super. 293, 298 (App. Div. 1996)). It "embodies the principle that the

adjudication of a legal controversy should occur in one litigation in only one

court." Dimitrakopoulos, 237 N.J. at 108 (quoting Cogdell ex rel Cogdell v.

Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989)). The doctrine stems from the "long-

held preference that related claims and matters arising among related parties be

adjudicated together rather than in separate, successive, fragmented, or

piecemeal litigation." Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207

N.J. 428, 443 (2011).

A-4557-17T3
8
 "A series of court rules implement the entire controversy doctrine in our

courts." Dimitrakopoulos, 237 N.J. at 109. See also R. 4:30A; R. 4:5-1(b)(2).

"Rule 4:30A requires joinder of claims but grants authority to a trial judge to

create a safe harbor in an appropriate case. Similarly, Rule 4:5-1(b)(2) requires

that names of potentially liable or relevant parties be disclosed . . . , leaving . . .

the decision about whether to join them or not" to the court. Kent Motor Cars

Inc., 207 N.J. at 445. In general, they require that a party assert all claims arising

from the same transactional facts in a single lawsuit, including defenses,

counterclaims, and cross-claims or be barred from later asserting them in a

successive action. See Mystic Isle, 142 N.J. at 322-23. However, a party "may

avoid the entire controversy doctrine by demonstrating that the prior forum did

not afford 'a fair and reasonable opportunity to have fully litigated' . . . [its]

claim." Dimitrakopoulos, 237 N.J. at 99 (quoting Gelber v. Zito P'ship, 147 N.J.

561, 565 (1997)); see also Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354

N.J. Super. 229, 241 (App. Div. 2002).

Dismissal under the applicable Rules "relates to the preclusion 'of a

successive action' that is appropriate only if 'the failure of compliance was

inexcusable and the right of the undisclosed party to defend the successive

action has been substantially prejudiced by not having been identified in the

A-4557-17T3
9
prior action.'" Alpha Beauty Distribs., Inc. v. Winn-Dixie Stores, Inc., 425 N.J.

Super. 94, 101 (App. Div. 2012) (quoting R. 4:5-1(b)(2)). "Dismissal is a

sanction of last resort." 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231,

237 (App. Div. 2011) (citing Kent Motor Cars, 207 N.J. at 453-54). In

determining whether a successive suit arises from the same transaction of a

previous suit, "it is the factual circumstances giving rise to the controversy itself,

rather than a commonality of claims, issues or parties, that triggers the

requirement of joinder to create a cohesive and complete litigation." Mystic

Isle, 142 N.J. at 323; see also DiTrolio v. Antiles, 142 N.J. 253, 271 (1995)

("[t]he entire controversy doctrine does not require commonality of legal

issues").

The entire controversy doctrine does not apply to preclude a successive

action if the previous action did not result in an adjudication on the merits.

Arena v. Borough of Jamesburg, Middlesex Cty., 309 N.J. Super. 106, 110-11

(App. Div. 1998). The voluntary dismissal of a federal court action does not

preclude a state court claim against the same defendant because there has been

no adjudication on the merits. When a federal case is dismissed on jurisdictional

grounds, a "second state court action will likely be permitted to be maintained.

But, . . . when a federal suit is adjudicated on its merits, then the potential arises

A-4557-17T3
10
for a dismissal of the second suit on entire controversy grounds." Archbrook

Laguna, LLC v. Marsh, 414 N.J. Super. 97, 108 (App. Div. 2010). For that

reason, where the federal action has been dismissed without an adjudication of

the merits, the dismissal of a state court action is not required even though the

federal action is concurrently pending, even if both cases are based in the same

facts and it would be appropriate for both cases to proceed simultaneously. See

Kaselaan, 290 N.J. Super. at 298-300.

The doctrine no longer applies to the mandatory joinder of parties, as

opposed to issues. "[M]andatory party joinder under the entire controversy

doctrine has been eliminated, and preclusion of a successive action against

a . . . . [non-party] to the first action has been abrogated except in special

situations involving both inexcusable conduct . . . and substantial prejudice to

the non-party resulting from the omission from the first suit." Hobart Bros. Co.,

354 N.J. Super. at 242 (quoting Pressler, Current N.J. Court Rules, cmt. 1 on R.

4:30A (2002)).

Applying these guiding principles here, we conclude the motion judge

incorrectly relied upon the doctrine. In doing so, the judge cited to Gross, a Law

Division case, where the trial court concluded "there can be little doubt that

plaintiffs have violated the principles of law as established in this state in that

A-4557-17T3
11
the entire controversy doctrine appropriately includes the mandatory joinder of

parties." Gross, 273 N.J. Super. at 624. As already noted, since Gross was

decided, the doctrine was amended to exclude mandatory joinder of parties.

Mitchell v. Charles P. Procini, D.D.S., P.A., 331 N.J. Super. 445, 452-53 (App.

Div. 2000). Moreover, in Gross, the trial court concluded that plaintiff "unfairly

withheld from the Federal Action" the defendants in that case who remained

subject to the federal court's "supplemental jurisdiction over the state cause of

action," and therefore could still be joined in federal court. Gross, 273 N.J.

Super. at 630.

Here, unlike defendants in Gross, People's was voluntarily dismissed from

the federal action because of a lack of diversity. There was no longer any federal

jurisdiction over defendants as jurisdiction over plaintiff's claim was based only

upon federal diversity jurisdiction.

We also conclude the motion judge's reliance on our opinion in J-M Mfg.

Co. was inapposite. In that case, the defendant previously filed a qui tam action

in California alleging that the plaintiff was defrauding its government

purchasers. J-M Mfg., Co., 443 N.J. Super. at 451. Following a trial, a federal

jury returned a verdict against the plaintiff and it filed a complaint in New Jersey

alleging, amongst other things, tortious interference and wrongful removal and

A-4557-17T3
12
copying of proprietary information by the defendant. Id. at 452. The trial judge

in the New Jersey action found that under federal and California law, the

plaintiff's claims should have been raised in the California qui tam proceeding

as they were compulsory counterclaims and that the New Jersey litigation was

barred under the entire controversy doctrine. Id. at 452. On appeal, we affirmed,

finding that plaintiff would be unfairly advantaged by pursuing the New Jersey

action. Id. 456-57. We noted that the claims in the New Jersey complaint arose

out of the same transaction as the California qui tam action. Id. at 457-58.

Here, there was no prior action in which plaintiff could have asserted its

claims against defendants. As noted, the federal action was dismissed because

of jurisdictional issues, not an adjudication on the merits. For jurisdictional

reasons, plaintiff had to pursue two different actions against defendants and the

individuals.

Moreover, plaintiff's claims against defendants are separate from those

alleged against Deem and Dougherty, even though the facts were related.

Regardless of a determination in this action as to defendant's liability, it could

not have impacted a federal court's determination of plaintiff's claims against

the two individuals as it could have no preclusive effect because Deem and

Dougherty were never parties to this action. Had plaintiff attempted to join

A-4557-17T3
13
those two individuals to this state court action, while the federal action was

pending or now after its apparent dismissal with prejudice, the Entire

Controversy Doctrine would certainly have been triggered.

Also, there is no evidence that plaintiff filed this action to engage in "the

kind of deliberate manipulation and forum shopping that the entire controversy

doctrine is intended to avoid." Id. at 460. Rather, plaintiff has fully complied

with the purposes of the doctrine and the corresponding rules. It tried to bring

all claims in one action and it disclosed the federal action in its complaint filed

in this action. For these reasons, we conclude the motion judge's reliance on the

doctrine was a mistaken exercise of his discretion.

III.

Next, we address the dismissal of plaintiff's complaint for failure to join

Deem and Dougherty, who the motion judge determined were indispensable

parties to this action. Here, too, we conclude the judge was mistaken.

Rule 4:28-1 addresses whether a party should or must be joined and states,

in pertinent part:

(a) Persons to Be Joined if Feasible. A person who is
subject to service of process shall be joined as a party
to the action if (1) in the person's absence complete
relief cannot be accorded among those already parties,
or (2) the person claims an interest in the subject of the
action and is so situated that the disposition of the

A-4557-17T3
14
 action in the person's absence may either (i) as a
practical matter impair or impede the person's ability to
protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring
double, multiple, or other inconsistent obligations by
reason of the claimed interest. If the person has not
been so joined, the court shall order that the person be
made a party. If the person should join as a plaintiff
but refuses to do so, the person may be made a
defendant.

(b) Disposition by Court if Joinder Not Feasible. If a
person should be joined pursuant to R. 4:28-1(a) but
cannot be served with process, the court shall determine
whether it is appropriate for the action to proceed
among the parties before it, or should be dismissed, the
absent person being thus regarded as indispensable.
The factors to be considered by the court include: first,
the extent to which a judgment rendered in the person's
absence might be prejudicial to that person or those
already parties; second, the extent to which, by
protective provisions in the judgment, by the shaping of
relief, or other measures, the prejudice can be lessened
or avoided; third, whether a judgment rendered in the
person's absence will be adequate; fourth, whether the
plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.

Whether a party is indispensable is a fact-sensitive issue. Allen B.

DuMont Labs., Inc. v. Marcalus Mfg. Co., 30 N.J. 290, 298 (1959). "As a

general proposition . . . a party is not truly indispensable unless he [or she] has

an interest inevitably involved in the subject matter before the court and a

judgment cannot justly be made between the litigants without either adjudging

A-4557-17T3
15
or necessarily affecting the absentee's interest." Ibid. Accord Cogdell, 116 N.J.

at 18. Typically, a party is "truly indispensable . . . [if] he [or she] has an interest

inevitably involved in the subject matter before the court and a judgment cannot

justly be made between the litigants without either adjudging or necessarily

affecting the absentee's interest." Chubb Custom Ins. Co. v. Prudential Ins. Co.

of Am., 394 N.J. Super. 71, 82 (App. Div. 2007) (quoting Jennings v. M&M

Transp. Co., 104 N.J. Super. 265, 272 (Ch. Div. 1969)).

However, the "absence of an indispensable party does not deprive the

court of jurisdiction to adjudicate the issues among the parties who were joined."

Toll Bros., Inc. v. Twp. of W. Windsor, 334 N.J. Super. 77, 91 (App. Div. 2000).

See also Raynor v. Raynor, 319 N.J. Super. 591, 602 (App. Div. 1999); Ross v.

Ross, 308 N.J. Super. 132, 143-44 (App. Div. 1998) (finding no error where the

trial court adjudicated a matter involving survivor benefits in the absence of

joinder of a party claiming an interest in the subject of the action). As we have

explained,

[e]ven if the court is mistaken in its decision to proceed
in the absence of an interested person, it does not by
that token deprive itself of the power to adjudicate as
between the parties already before it through proper
service of process. But the court can make a legally
binding adjudication only between the parties actually
joined in the action. It is true that an adjudication
between the parties before the court may on occasion

A-4557-17T3
16
 adversely affect the absent person as a practical matter,
or leave a party exposed to a later inconsistent recovery
by the absent person. These are factors which should
be considered in deciding whether the action should
proceed, or should rather be dismissed; but they do not
themselves negate the court's power to adjudicate as
between the parties who have been joined.

[Raynor, 319 N.J. Super. at 602 (emphasis in original)
(quoting Pressler, Current N.J. Court Rules, cmt. 1 on
R., 4:28-1).]

If a non-party should be joined but cannot be served with process, the

court must determine whether the action may proceed in the non-party's absence

or whether the non-party is indispensable such that the matter must be dismissed.

See R. 4:28-1(b). Factors that must be considered in evaluating whether a non-

party is indispensable to the just adjudication of the matter include: (1) the

extent to which a judgment rendered may prejudice the current parties as well

as the person who should be joined; (2) the extent to which relief may be shaped

so as to avoid such prejudice; (3) whether a judgment rendered in the person's

absence could provide adequate relief; and (4) whether plaintiff will have "an

adequate remedy if the action is dismissed for nonjoinder." R. 4:28-1(b).

Here, it appears that that there was no dispute that Deem and Dougherty

could not be served with process in New Jersey. Yet, the motion judge did not

conduct the analysis of whether Deem or Dougherty must be joined in this action

A-4557-17T3
17
as indispensable parties as required by Rule 4:28-1. Rather, he merely relied

upon their role as alleged bad actors who were integral to plaintiff's claim that

defendants caused it harm through their actions and that there would be two

litigations proceeding simultaneously. While the claim that Deem and

Dougherty acted improperly ran through both the federal action and this one, it

was not determinative of whether this action could proceed or if in fact,

regardless of the two individuals' conduct, defendants were liable to plaintiff.

Because it was not feasible to join Deem and Dougherty, the motion judge

should have conducted an analysis under subsection (b) to determine wh ether

they were indispensable. For that reason, we are constrained to vacate the order

dismissing plaintiff's complaint and to remand the matter for reconsideration

under Rule 4:28-1(b).

The order under appeal is reversed to the extent it arose from the

application of the Entire Controversy Doctrine, and vacated and remanded for

further proceedings under Rule 4:28-1(b) consistent with our opinion. We do

not retain jurisdiction.

A-4557-17T3
18