Marmo and Sons General Contracting, LLC v. Biagi Farms, LLC

Syllabus

This dispute involves whether a party to a contract waived its right to compel arbitration by its conduct in a lawsuit it initiated. Plaintiffs appeal from the trial court's denial of their motion to compel arbitration of claims against defendants for nonpayment of residential construction services they rendered. The parties' contract, which was drafted by plaintiffs, contained a provision calling for disputes to be resolved through binding arbitration. The motion judge ruled that plaintiffs waived their contractual right to arbitrate. Among other things indicative of such a waiver, the record shows that: (1) plaintiffs filed claims in the Law Division beyond those necessary to assert a lien under the Construction Lien Law (CLL), N.J.S.A. 2A:44A-1 to -38 (2) asserted in their 4:5-1(b)(2) certification accompanying their complaint that no arbitration was contemplated and (3) waited to move to compel arbitration after receiving the benefit of significant discovery, while failing to comply reciprocally with defendants' discovery demands. Applying the multifactor test prescribed in , 215 N.J. 265, 280-81 (2013), this court concludes that plaintiffs waived their right to compel arbitration. In the course of doing so, however, the court rejects defendants' contention that the United States Supreme Court's opinion in , 596 U.S. 411, 417-19 (2022), eradicates the factor that considers whether the party opposing arbitration was prejudiced by the movant's delay. Prejudice remains one of the pertinent, but not individually dispositive, factors after . However, that particular factor is not controlling in this case, given the totality of the circumstances that otherwise, on balance, further establish waiver. P.S.: Please note that the court is simultaneously issuing with two unpublished opinions applying the waiver factors and citing .