Murray v. Comcast Corp., 457 N.J. Super. 464 (App. Div. 2019). In this employment case, the issue was whether the Law Division had subject matter jurisdiction to entertain a motion for reconsideration. On June 9, 2017, the Law Division granted defendants’ motion to compel arbitration of plaintiff’s claims. Plaintiff mailed in a motion for reconsideration on July 20, 2017, 41 days after the order as to which reconsideration was sought, and the Law Division did not receive that motion until July 26, 2017, 47 days after the order compelling arbitration. On November 16, 2017, the Law Division granted reconsideration.
Defendants appealed, and the Appellate Division raised sua sponte the issue of subject matter jurisdiction. The panel ordered further briefing, and defendants timely filed a supplemental brief. There, defendants conceded that the parties had not received the June 9, 2017 order until June 30, 2017, and that plaintiff had “filed” his motion for reconsideration 20 days later, thereby making it timely. Plaintiff filed an untimely letter joining in defendants’ position.
Today, the Appellate Division ruled that subject matter jurisdiction was lacking. Judge Fuentes wrote the panel’s opinion.
The question as to subject matter jurisdiction arose out of the ruling in Hayes v. Turnersville Chrysler Jeep, 453 N.J. Super. 309 (App. Div. 2018). As summarized here, that opinion, also by Judge Fuentes, held that a denial of a motion to compel arbitration is not an interlocutory order that can be appealed at any time. Rather, it is a final order, by virtue of Rule 2:2-3(a)(3) and GMAC v. Pittella, 205 N.J. 572 (2011). Thus, such a ruling can be reviewed only by a timely motion for reconsideration (that is, within 20 days, under Rule 4:49-2) or a timely appeal (within 45 days).
Judge Fuentes agreed that “the twenty-day time frame in Rule 4:49-2 starts from the date of service of the order, not from the date of entry.” But he observed that “[p]ursuant to Rule 1:6-3(c), “service of motion papers is complete only on receipt at the office of adverse counsel or the address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing.”
Here, defendants did not state that their counsel had been served with the motion for reconsideration on July 20, 2017, 20 days of the entry of the order compelling arbitration. Assuming that plaintiff’s counsel mailed the papers on July 20, the presumption of Rule 1:6-3(c), unrebutted on this record, was that service was made on defendants on July 25, 2017, the third business day after July 20, 2017. Moreover, the Law Division did not receive and file the motion until July 26, 2017.
Finally, Judge Fuentes noted that Rule 1:3-4(c) “expressly” prohibits enlarging the 20-day time period for motions for reconsideration. Thus, plaintiff’s untimely service of his motion for reconsideration could not be salvaged by an extension of time. Since the Law Division lacked subject matter jurisdiction to grant reconsideration, the panel vacated that order and remanded the case to proceed in arbitration.
There is a clear lesson here, which is that if a filing deadline is near, papers should be served by a more expeditious means than regular mail. With the advent of electronic filing in the Law Division, the situation here may not reoccur. But the Chancery Division does not yet have electronic filing, so today’s decision is a warning for Chancery litigants and counsel.