07-2-8775 Cho v. Trinitas Reg’l Med. Ctr., App. Div. (Espinosa, J.A.D.) (20 pp.) On the day before jury selection in this medical malpractice case, defendant filed a motion that was purportedly a “motion in limine,” but which sought the dismissal of the complaint against him in its entirety, an admitted violation of the rule governing summary judgment motions. The fact that this misuse of the motion in limine occurs sufficiently often to win our notice, despite our repeated cautions against such practice, leads us to conclude it necessary to state clearly what a motion in limine is not. It is not a summary judgment motion that happens to be filed on the eve of trial. When granting a motion will result in the dismissal of a plaintiff’s case or the suppression of a defendant’s defenses, the motion is subject to Rule 4:46, the rule that governs summary judgment motions. We hold the trial court’s consideration of these motions and dismissal of the complaint against defendant deprived plaintiffs of their right to due process of law, reverse that dismissal and remand for restoration of the complaint to the trial calendar.(Approved for Publication)
25-X-8779 J-M Mfg. Co., Inc. v. Phillips & Cohen, LLP, App. Div. (Alvarez, P.J.A.D.) (18pp.) We affirm the Rule 4:6-2(e) dismissal of J-M’s complaint based on application of the entire controversy doctrine. In 2006, defendant John Hendrix, plaintiff J-M’s former employee, filed a federal qui tam action in California under the False Claims Act (FCA), 31 U.S.C.A. §§ 3729-3732, alleging J-M defrauded various governmental entities in the sale of PVC pipe. Hendrix gathered the information which formed the basis of the FCA action while represented by his attorneys, defendant Phillips & Cohen. The FCA protects legitimate whistleblowers from counterclaims meant to harass or indemnify a liable defendant by holding the counterclaims in abeyance until a defendant’s liability is decided. If a defendant is found liable, the counterclaim is dismissed as the FCA prohibits a defendant from obtaining indemnification or offset for its wrongdoing. No counterclaim was filed by J-M. While the qui tam action was pending final resolution, J-M sued in New Jersey seeking damages against Hendrix and his attorneys for Hendrix’s investigatory activities, including the removal or duplication of confidential documents, customer information, and other claimed breaches of Hendrix’s contractual commitments to J-M. We conclude that the entire controversy doctrine mandates dismissal of the New Jersey complaint because it was based on the same transaction or transactional circumstances as the California proceedings. We further conclude that in light of the purpose of the entire controversy doctrine and the policy aims of the FCA, the fact that the cases were being pursued simultaneously did not prevent application of the doctrine. (Approved for Publication)
