CIVIL PROCEDURE
7-2-6041 Mackanin v. Bowers, App. Div. (per curiam) (8 pp.) Defendants in this matter had filed a complaint against plaintiff asserting, inter alia, a claim for defamation. Plaintiff’s insurance company assigned counsel who moved to dismiss as barred by the statute of limitations. Prior to the return date of the motion, plaintiff’s personal counsel filed this action alleging malicious prosecution and defamation against defendants. Counsel complied with Rule 4:5-1 by certifying in plaintiff’s complaint that the matter in controversy was the subject of the civil complaint. Counsel also stated in his Rule 4:5-1 certification that he planned to consolidate plaintiff’s complaint with the civil complaint if the court denied insurance counsel’s pending motion to dismiss. Three weeks later, the court granted the motion to dismiss defendants’ complaint. Defendants filed an answer and cited the entire controversy doctrine as a defense. The matter went to arbitration that resulted in an award for plaintiff. Defendants filed for a trial de novo and a trial date was set. They then moved for summary judgment contending that the action was barred by the ECD because the insurance counsel had failed to bring plaintiff’s affirmative claims as a counterclaim to defendants’ civil complaint. The court granted the motion. On plaintiff’s appeal, the panel reversed, finding that the trial court misapplied the ECD. The panel found that plaintiff’s complaint did not result in piecemeal litigation, unfairness to the parties, or unnecessary delay and that the ECD did not required dismissal where plaintiff’s counsel had filed the complaint before the dismissal, identified the civil complaint in his Rule 4:5-1 certification, and noted his intention to consolidate the cases.
