U.S. District Judge Jerome Simandle Photo: Carmen Natale/ALM

A federal judge in Camden has tossed a developer’s suit against a soil-testing company for failure to submit a timely affidavit of merit, rejecting the plaintiff’s argument that no affidavit is required for a breach-of-contract claim.

An affidavit is needed because the plaintiff claimed the defendant’s report was faulty and because expert testimony would be needed to evaluate the complaint, U.S. District Judge Jerome Simandle ruled Friday in Frontier Development v. Craig Test Boring.

Frontier hired Craig Test Boring Co. to perform soil tests on the site of a proposed commercial building in Egg Harbor Township. Craig Test Boring subcontracted with Craig Testing Laboratories to perform the test and prepare the report. Frontier contended that the report’s findings were flawed, and that its construction project was delayed by the need to remove loose ground under the topsoil, contrary to the report.

Miami-based Frontier sought $174,078 in damages from Craig Testing and Craig Test Boring, both located in Mays Landing, in its February 2016 suit. The suit claimed that Craig Test Boring breached its contract by impermissibly assigning the soil testing and report preparation to Craig Testing, and that both defendants breached the contract by misstating the depth of the topsoil and the amount of site preparation that would be required to ready the property for construction.

In August 2016, Frontier filed an amended complaint, and later that month the defendants filed an answer. This January, the defendants filed their motion to dismiss, citing the lack of an affidavit of merit. Under the statute, N.J.S.A. 2A:53A-27, an affidavit of merit must be filed within 60 days of the answer, but Frontier filed its affidavit in February, six months after the answer was filed.

Simandle said that even though the plaintiff calls its suit a breach-of-contract case, the gravamen of its complaint is that the report and its findings are faulty. Therefore, expert testimony will be needed to evaluate whether defendants did their work in a faulty manner, the judge said.

He also said Frontier did not meet the statutory, 60-day deadline for its affidavit of merit and would not have been in compliance even if the deadline were extended to 120 days. Simandle said the common knowledge and substantial compliance exceptions to the affidavit of merit law did not apply. In addition, Simandle rejected the plaintiffs’ claim that they were entitled to an extension of the affidavit of merit deadline under the extraordinary circumstances exception based on a stay of discovery issued by U.S. Magistrate Judge Karen Williams.

Frontier cited other cases in which the affidavit of merit deadline was extended after courts imposed a stay on proceedings. But Simandle said the cases cited by Frontier were different than the present case because Williams stayed discovery, but did not stay the proceedings entirely. In addition, Frontier did not assert that Williams’ scheduling order created any confusion about the obligation to file a timely affidavit, Simandle said.

“Plaintiff was afforded ample notice and opportunity to file an AOM before the 60 (or 120) day deadline passed, and plaintiff was clearly capable of actually producing one,” Simandle said. “The circumstances here are far from exceptional and do not warrant dismissal without prejudice.”

Parsippany attorney Alan Ackerman, who represented Frontier, and Michael DeRita of Chiumento McNally in Voorhees, representing Craig Test Boring and Craig Testing Laboratories, did not return calls about the ruling.