NOT FOR PUBLICATION WITHOUT THE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-4354-17T2
JEANNE RUSSELL,
Plaintiff-Appellant,
v.
HCL AMERICA, INC.,
COVANCE, INC., JAIDEP
ROY and JOELIEN JOSE,
Defendants-Respondents.
______________________________
Submitted January 30, 2019 – Decided July 5, 2019
Before Judges Ostrer and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-4622-15.
Cahn & Parra, LLC, attorneys for appellant (Steven D.
Cahn, on the briefs).
Ogletree, Deakins, Nash, Smoak & Stewart, PC,
attorneys for respondents (Jennifer Ann Rygiel-Boyd,
on the brief).
PER CURIAM
Plaintiff Jeanne Russell appeals from the trial court's April 16, 2018 order
denying reinstatement of her Law Against Discrimination (LAD) complaint,
alleging various acts of discrimination and harassment by her former employer,
HCL America, Inc., and others. In essence, plaintiff sought vacatur of an
arbitration ruling dismissing her complaint as time-barred. We affirm the trial
court's order.
Russell was terminated on April 3, 2015 and filed her complaint on August
4, 2015. Defendants answered that the claim was improperly brought in
Superior Court, because plaintiff's employment agreement said, "all disputes
arising under or in connection with this Agreement or concerning in any way
employee's employment shall be submitted exclusively to arbitration." In
December 2015, the parties stipulated to the complaint's dismissal without
prejudice. The stipulation stated, "The parties shall proceed to arbitration in
accordance with Plaintiff's employment agreement . . . ."
The arbitration was not self-initiating. Soon after the dismissal without
prejudice, defense counsel wrote to plaintiff's counsel, stating, "I assume you
will now initiate the arbitration proceeding with AAA." However, plaintiff's
counsel did nothing until May 2, 2017, when he inquired about the status of the
matter. Defense counsel responded that plaintiff was obliged to initiate the
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arbitration, but had not. Only thereafter, plaintiff filed a demand for arbitration
with AAA on June 8, 2017.
Defendants followed with a motion to dismiss, on the basis that plaintiff
filed her demand over two years after her LAD claim arose in April 2015. After
briefing, the arbitrator granted the motion. In a thorough written opinion, the
arbitrator rejected plaintiff's contention that the limitation period should have
been equitably tolled. The arbitrator noted that plaintiff was on notice, based
on defense counsel's email and AAA rules, that she had the obligation to initiate
the arbitration; and defendants did not act inequitably or were otherwise
responsible for plaintiff's unexcused delay.
Plaintiff then returned to Superior Court, seeking reinstatement of her
complaint. Judge Gary K. Wolinetz denied the motion in a cogent written
opinion.
On appeal, plaintiff renews her arguments that the filing of the lawsuit
tolled the statute of limitations; the matter should have been transferred to
arbitration rather than await her initiation;1 and the court should have reinstated
the complaint because the arbitrator's decision violated the stipulation. We are
1
Plaintiff relies in part on correspondence from defense counsel, prior to entry
of the stipulation, stating that defendant wanted to dismiss the lawsuit and
"transfer the matter to arbitration."
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3
unpersuaded and affirm the court's order, substantially for the reasons set forth
in Judge Wolinetz's well-reasoned opinion.
We add the following brief comments, directed principally to plaintiff's
argument that our decision in ASHI-GTO Associates v. Irvington Pediatrics,
P.A., 414 N.J. Super. 351 (App. Div. 2010), affirming a trial court's
reinstatement of a complaint, compels reversal here. In ASHI-GTO, a timely-
filed complaint was dismissed based on the parties' agreement to arbitrate two
landlord-tenant disputes. However, the arbitration was never concluded.
Rather, the defendant objected to the arbitrator's race, later walked out of an
arbitration session, and disputed whether he agreed to arbitrate one of the
disputes. Id. at 356-57. Noting that reinstatement is left to the trial court's sound
discretion, we discerned no abuse of discretion in the trial court's decision to
permit reinstatement. Id. at 359. The statute of limitations presented no bar,
because the case assumed the status it possessed before dismissal. Ibid.
Unlike in ASHI-GTO, this case proceeded to a final decision in
arbitration. Exercising her authority under AAA rules, the arbitrator determined
the demand was untimely and awarded dismissal. Plaintiff's motion to reinstate
her complaint amounts to an effort to vacate the arbitration decision, without
satisfying the grounds for vacatur set forth in N.J.S.A. 2A:23B-23.
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In particular, we reject plaintiff's argument that the arbitrator exceeded
her authority by violating the terms of the stipulation. See N.J.S.A. 2A:23B-23
(stating that a court shall vacate an arbitration award if "an arbitrator exceeded
the arbitrator's powers"). Nothing in the stipulation relieved plaintiff of
initiating a timely demand for arbitration, or precluded the arbitrator from
considering a motion to dismiss on statute-of-limitations grounds. Finally,
plaintiff's contention that the arbitrator misapplied established law concerning
the statute of limitations is not a cognizable basis to set aside the arbitrator's
decision, absent an agreement to expand the scope of judicial review. See
Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 358 (1994)
(decided under the prior arbitration statute).
Affirmed.
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