![]() ![]() Despite this, the trial court directed the parties to address the threshold issue of voluntary dismissal under both Rule 4:37-1(a) and (b). Plaintiff responded in a letter dated August 8, 2011, asking the court to either confirm his voluntary dismissal under Rule 4:37-1(a) or allow him to move for a voluntary dismissal under Rule 4:37-1(b).3īy the time defendants' motion to dismiss came before the court for oral argument, plaintiff had not filed a formal motion for voluntarily dismissal under Rule 4:37-1(b). In this letter, the judge established a briefing schedule for defendants' pending motion to dismiss, set a date for oral argument, and suggested that the attorneys attempt to resolve the matter before the date set for oral argument. The trial judge responded to defense counsel by way of letter. Fitzpatrick's personal claims to Special Civil Part, Small Claims Section. In the event the plaintiff fails to dismiss this case with prejudice, we respectfully request your Honor proceed with this hearing on Gann's motion to dismiss the class action claims with prejudice and to transfer Mr. Such blatant forum shopping is improper, especially since plaintiff has failed to timely file his Notice of Voluntary Dismissal and his case must either be dismissed with prejudice or adjudicated on the merits in state court, the forum where he chose to institute those claims. ![]() Gann Legal Education Foundation and Michael Protzel, Civil Action No. He then sought to reinstitute the same personal and class action claims against the same parties as the present action in a lawsuit filed in the United States District Court for the District of New Jersey on July 26, 2011, entitled Nicholas Fitzgerald v. Plaintiff sought to "voluntarily dismiss" this case the day after the Appellate Division decided Local Baking Products. After describing the procedural history of the case, defendants presented the following argument: ![]() The following facts inform our legal analysis.Ĭounsel for defendants first raised the issue of timeliness regarding plaintiff's notice of voluntary dismissal under Rule 4:37-1(a) in a letter to the trial judge dated August 3, 2011. We thus need not and specifically do not reach the arguments challenging the court's ruling under Rule 4:37-1(b). We affirm for reasons other than those expressed by the trial court.2 We are satisfied that plaintiff's notice of voluntary dismissal under Rule 4:37-1(a) was timely filed. Defendants now appeal arguing that the trial court erred in exercising the authority conferred in Rule 4:37-1(b), because the court failed to consider plaintiff's improper motive of forum shopping in seeking to dismiss the state action. Despite this, the trial court construed Rule 4:37-1(b) as giving it discretionary authority to dismiss plaintiff's complaint without prejudice and without costs or fees, and it entered an order accordingly. The Law Division ruled that plaintiff's notice of voluntary dismissal was untimely under Rule 4:37-1(a). Defendants filed an answer with the court that same day.1 On July 26, 2011, five days after filing the notice of voluntary dismissal of the state action, plaintiff filed a similar complaint in the United States District Court for the District of New Jersey. The next day, July 21, 2011, plaintiff filed a notice of voluntary dismissal without prejudice under Rule 4:37-1(a). On July 20, 2011, the day after our decision in Local Baking Products was released, defendants moved to dismiss plaintiff's class action claims against them with prejudice and to transfer the remaining claims to the Small Claims Section of the Special Civil Part. 96 (2011), which held that class action suits were inappropriate for adjudicating TCPA claims in the courts of this State. Shortly after plaintiff filed his complaint, this court decided Local Baking Products, Inc. ![]() Plaintiff Nicholas Fitzgerald, an attorney licensed to practice in this State, filed this class action suit in the Law Division of the Superior Court of New Jersey against defendants Gann Law Books, Inc., Gann Legal Education Foundation, Inc., and Michael Protzel, alleging that defendants violated the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C.A. Bellin (Bellin and Associates L.L.C.) argued the cause for respondent. Greenberg argued the cause for appellants (Lite DePalma Greenberg, L.L.C., attorneys Allyn Z. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No.īruce D. Before Judges Fuentes, Graves, and Koblitz. ![]()
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